Process Questions

Q. How long do I have to live in Illinois before I can file for divorce?

A. You have to either have lived in Illinois for 90 days before filing or 90 days before the entry of the Judgment.

Q. Is there a difference between being Petitioner and being Respondent?

A. The difference is only notable in a contested case. In an uncontested case, the husband and wife decide between themselves who wants to file the PFD.

Q. How long will my divorce take?

A. The answer is that it depends partly on what process you choose and how well you and your spouse communicate. A litigated case where you have frequent court appearances to obtain results will take a longer time than a divorce in which you and your spouse attempt to work out your parenting and settlement agreements through negotiation, mediation or Collaborative divorce. A Collaborative or mediated case could take between 3 and 6 months, perhaps as much as a year, although the actual time it takes from beginning to end will depend on how willing each side is to cooperate with document production and making meeting dates. The result of your divorce should be more important than how long it takes. In a litigated case, the case is likely to take a minimum of a year and could take as long as several years.

Q. How much will my divorce cost?

A. That depends in large part as to how long it takes. (See above) It also depends on how much work you can do on your own behalf, such as obtaining needed documents, prioritizing tasks, and working with your attorney. And finally it depends on how complicated your divorce may be.

Q. How can I keep my legal fees down?

A. By doing as much "leg work" as you can, such as gathering documents and necessary records, as well as by making sure you only contact your attorney with important questions. Keep a list of your questions so that unless you have a crisis, you don't have to contact your attorney more frequently than necessary. Also, by being as organized as you can, you will not have to keep contacting your attorney for answers to questions you already asked.

Q. We have a lot of assets to divide. Is Collaborative divorce appropriate for people with high assets?

A. Collaborative law works as well for people with high assets as it does for people whose assets may be limited. Often high asset cases are less complicated to resolve than cases where finances are limited and the debt to asset ratio is high.

Q. Is it true that after we are divorced anyone can look at the court record and see all the ugly things we've said about each other and even see our final settlement? Is this true only if we go to trial?

A. You are correct. With very few exceptions, court records are public documents accessible by anyone who knows your names and takes the time to go to the courthouse and request a look at your file. It could be a nosy neighbor or relative, a prospective employer, a bank official. It can even be your own children. Whether or not you go to trial, all the requests to the court that you make in documents called "pleadings" are kept in the court file, including your final settlement.

Q. If privacy is important to us, is there anything we can do to prevent others from seeing our personal lives and problems, as well as our finances?

A. Yes. You can choose to go to mediation or select Collaborative attorneys to help you reach a final settlement. Neither Collaborative divorce or a mediated divorce requires the filing of any court documents until the case is concluded. You can ask your Collaborative attorneys how to do this.

Financial Questions

Q. How will I know whether or not I can keep my house?

A. For many divorcing spouses, it is helpful to consult with a neutral financial consultant, such as a certified divorce planner or a certified financial planner who can review your finances and determine how much money you will need to stay in your home and help you decide if this is a wise financial decision.

Q. Will my credit be affected by divorce?

A. If your credit scores are good before the divorce, they should not dramatically change after the divorce unless you stop paying bills on time or have problems related to refinancing your present home or keeping up mortgage payments. I suggest that you obtain periodic free credit reports for yourself every few months. You are entitled to 1 per year from each of the 3 major credit reporting agencies: Experian, Transunion, and Equifax. Many people request 1 every 4 months from one of the 3 agencies, which each are required to provide you with 1 credit report per year.

Q. Will I be able to get credit cards in my name after I am divorced?

A.. Sometimes you may need your spouse's income to qualify for a new credit card, so for many people, it is best to make sure that you have at least 1 good credit card in your name alone before you get divorced.

Q. I suspect my spouse is hiding money from me. Can I find it if we get divorced?

A. Persons who are paid either as employees or as independent contractors receive end of year IRS forms 1099 or W-2 that disclose how much money was paid to that individual and which are used to file income tax returns. If you and your spouse have filed taxes jointly, the tax returns will give your lawyer good information to follow up on. Even if you file separately your attorney can obtain copies of your spouse's tax returns either by agreement in a Collaborative or mediated case, or by the discovery. There is usually a long paper trail of deposits and withdrawals from banks and credit card companies that you and your attorney can review, unless your spouse is paid in cash that is not reported on tax returns.

Q. My spouse never lets me see our tax forms, just showing me the signature line and asking me to sign. Does that mean only my spouse has access to Income Tax Reports?

A. You have the right to see your joint income tax reports and can obtain copies directly from the IRS by calling the IRS at 1-800-908-9946, or ordering by mail using IRS Form 4506T (Request for Transcript of Tax Return), which you can request on-line or by phone. The IRS website is www.irs.gov.

Q. The IRS claims my husband did not pay enough taxes a few years ago and is after us to pay those taxes plus penalties and interests. I never looked at our joint tax returns and just signed as my husband requested me to do. If we get divorced before the IRS issue is settled does that mean that only he will be responsible for paying the back taxes?

A. With few exceptions, called "the Innocent Spouse" designation, when you sign a joint tax return you and your husband are "jointly and severally liable" to pay the taxes. That means that if he doesn't pay them or all of them, the IRS can go after you to pay the unpaid taxes. It is best to consult with your attorney as to issues as complicated as this.

Children's Issues

Q. Is there a difference between sole custody and joint custody?

A. Joint custody requires the parents to consult with each other before making major decisions regarding their minor children regarding education, religion, non-emergency medical treatment, and other issues as diverse as whether or not the child can go to a summer program out of the country, can drive a car at 16, or can get a tattoo, etc. Sole custody allows the custodial parent to make those decisions without consulting the other parent. Day to day decisions are made by the parent who is caring for the minor children at the time the decision needs to be made, with the exception of emergencies.

Q. If I am the custodial parent can I limit the time my minor children spend with my ex?

A. Many people confuse parenting time with the issue of sole or joint custody. Parenting time (visitation) is not determined by the custodial parent. A non-custodial parent may actually have as much parenting time with the minor children as the custodial parent. Unless a court determines that one parent poses a danger to the children, the other parent cannot limit the time minor children are with the other parent.

Q. If I am not the custodial parent, can my ex move out of state?

A. Removal, the act of moving out of state with the minor children, is governed by state laws that require that either both parents agree on the removal or the parent seeking to leave the state go to court to get permissions. Most states place a high burden on the parent seeking to remove the child or children from the last state in which they were living during the parents' marriage.

Q. Do the courts in Illinois ever award custody to fathers?

A. Illinois laws relating to child custody are based on "the best interests" of minor children. If the parents are in a custody battle through the courts, before the judge makes a decision, the judge is likely to appoint both a child's representative ( a lawyer) and a custody evaluator (a psychologist or psychiatrist) to evaluate the family and help the judge decide which parent fulfills best the judge's definition of best interests of the children. That can be a mother or a father. 

Q. How do we decide about custody in a mediated or Collaborative divorce case?

A. By working out an agreement with the aid of a mediator or Collaborative attorneys, the father and the mother can help each other come to an agreement that works best for their minor children. As it is necessary to be able to communicate with each other after the divorce in order to joint parent effectively, parents electing to go through mediation or the Collaborative process have the benefit of learning post-divorce communication while they are working out their settlement agreement. Often they are aided by utilizing the services of parenting specialists (licensed mental health professionals also Collaboratively trained) to help the parents work out creative parenting schedules that give the parents and the children far more flexibility in parenting time than they are likely to get in any court.