Family Law Common Questions

While there is really no legal significance as to which spouse files the divorce action, there may be some procedural and/or tactical advantages for a given party to institute the divorce action. Examples of these situations are the spouse who needs to obtain a restraining order and/or an order of protection against an abusive spouse or the client who’s spouse has cut off all financial assistance to the family. In these cases, it is clear that one party needs to make the “first move” in court and may not be able to wait for his/her spouse to file for divorce.

Generally, all divorce cases are litigated in the county in which one or both of the parties reside. Depending on the location of the parties’ residence and their cooperation, Cook County cases may be handled either at the Richard J. Daley Center Courthouse located in the Chicago Loop, the Sixth District Municipal Courthouse located in Markham, the Fifth District Municipal Courthouse located in Bridgeview, or the Third District Municipal Courthouse located in Rolling Meadows. All Will County cases are handled at the County Courthouse located in Joliet and all DuPage County cases are litigated at the DuPage County Courthouse located in Wheaton.

The two most commonly used grounds for a divorce are irreconcilable differences and mental cruelty. Clearly the most common of these is irreconcilable differences which is our state’s version of a “no fault” divorce.

An uncontested divorce case (where both parties agree on all terms prior to the case being filed) generally can take no longer than a few weeks to have a final decree entered once the attorney is retained by one of both spouses. However, for contested divorce cases, it is impossible to accurately predict how long the case will take from start to finish. While most cases, which do not involve custody disputes, are negotiated to a settlement within six months after the case is filed, it may take as long as three years to bring a contested case to trial before a trial judge. Always keep in mind that, as with any lawsuit, the case is over as soon as the parties have reached an agreement on all issues and the Court enters a Judgment for Dissolution of Marriage. Unfortunately, absent an agreement between the parties, the case can only be resolved through a trial and, with the backlog of cases in our court system, it may take as long as three years to obtain a trial date.

While it is not uncommon in “uncontested cases” for there to be only one attorney involved in the case, that attorney does not represent both parties because of the inherent conflict of interest. Accordingly, in those cases where there is only one attorney, that attorney actually represents one party only and the other party ends up representing himself/herself. The attorney involved simply prepares all of the papers necessary to have the divorce finalized without providing legal advice to the other side. In light of the fact that a divorce adversely affects everything the parties have accumulated during their lifetime, as well as, impact upon almost every aspect of their future life (especially when children are involved), Urban & Burt, Ltd. strongly suggests that both parties have legal representation to protect their interests since the lawyer can’t provide advice to the other party without the lawyer.

Generally, it is not a good idea to expose your minor children to a dating partner so soon after a “breakdown” in a marriage. Also, while there is no legal prohibition against dating from the court’s standpoint, this activity may cause a spouse to become angry and begin acting vindictively toward you. This will certainly hamper settlement negotiations and make the case more expensive because of the attorney’s time being spent defending the resulting actions of a “scorned spouse.” You should also realize that, in certain circumstances, your spouse may be allowed to subpoena your dating partner into court to testify about your relationship and the expenditure of marital funds during this relationship.

Yes, it is not required, but generally a common practice to have a paying spouse’s child support and/or maintenance obligation deducted from his/her paycheck by the employer and mailed directly to the receiving spouse. The Judge may order support deducted and withheld.

Yes, in some cases a party may be able to convert an existing group medical insurance policy provided by your spouse’s employer to an individual policy so that insurance coverage can be maintained for that spouse for up to 24 months after a divorce, but this may be dependent on Insurance carrier provisions. Although a party will be required to pay a premium for the continuation of insurance coverage, there will be no loss in the benefit level during the extension of insurance coverage. Children can always be maintained on any existing “family” policy without an additional charge because a divorce does not change the fact that children are (and remain) “family members” as this term is used within the insurance industry.

In those cases where there is a substantial disparity in income levels between the parties and child support/maintenance obligations are not excessive, a spouse with the greater income may have to contribute to the legal expenses incurred by the other spouse. The Court may also award fees based on lack of cooperation among other issues. However, it is important to note that the liability for any attorney’s fees is ultimately the responsibility of the spouse who retained that attorney.

We recommend that a divorcing spouse does not plan a marriage until the Judgment for Dissolution of Marriage is actually entered in court and has been final for at least 30 days. The reason for waiting at least a month is that a party has up to 30 days in which to appeal a Judgment for Dissolution of Marriage. If an appeal is taken by your spouse the divorce decree that was entered could be voided by the Appellate Court, creating a situation where you divorce is not final.

Given the complexities of today’s IRS laws, there can be quite an array of serious tax ramifications in a divorce action. Issues of income tax inclusion/deductibility of child support and maintenance payments, liability for capital gains tax for certain asset sales and distributions, and the income tax ramifications of pension right divisions are just but a few of these problems. Furthermore, once divorced, it is always a good idea to review the provisions of your Will with a skilled attorney and, even with the most modest of assets, it could be quite beneficial to address a proper estate plan with an attorney experienced in these areas.