FAQs

FAQs regarding Divorce and other Family Law Matters

What is an Allocation Judgment?

In Illinois, there is no longer “custody.” Instead the court will determine which parent has primary responsibilities for making decisions regarding your children’s health, education, extracurricular activities and religion.  One parent may be assigned one or all of the decision-making responsibility for each of the four areas.

How will parenting time (formerly visitation) be determined?

If the parents cannot agree on a parenting time schedule, the  judge will make the decision.  Often times the court will appoint an attorney for the children and a psychological evaluator (or 604.10(b) evaluator) to make recommendations regarding parenting responsibilities and parenting time. When a court determines which parent will be the the primary decisions for the children, the judge weighs the following factors and some others: the wishes of the parent regarding the child; the wishes of the child; interaction of the child with his parents, siblings and other significant people; the child’s adjustment to home, school and community; the mental and physical health of the individuals involved; the threat of physical violence or actual violence in the home; and the willingness and ability of each parent to facilitate a close relationship with the other parent.

Will the judge listen to my child’s preference?

Having children testify in their parents’ divorce or parenting dispute is rarely granted. At most a judge may conduct an in camera interview with a child. This occurs in the judge’s chambers and not in open court.  These requests are not easily granted as the court discourages the children’s involvement in legal proceedings.  However, the court may appoint a child representative, guardian ad litem or child’s attorney to ascertain the child’s desires but primarily help assess what is in the child’s best interest.

What is visitation or parenting time?

Each parent is awarded specific holiday, vacation and parenting time on certain days with the minor child unless parenting time has been restricted.  The definitive parenting (visitation) schedule depends on the age of the child, the child’s activities in school, the distance between the parents’ homes and the parents’ work schedules and other facors.

How much visitation/parenting time will I have with my children?

There is no specific guideline. Parents who can communicate and work together can develop a parenting arrangement that works best for them and their children. If the parents can reach an agreement through mediation, collaboration or settlement conferences with their counsel, the court usually approves the arrangement.  Each parent has the right to have significant parenting time and contact with the child. Sometimes sports, music or other scheduled activities for children impact parenting time. Other considerations such as work schedules, distance between the parent’s homes and age of the children also may impact the amount of time the other parent has with the child.

What rights do I have as a father?

As a father living with the minor children you have as many rights as the child’s mother.  You have the right to seek  parenting time with your children. Unmarried fathers who do not live with their children may find that the Illinois Department of Healthcare and Family Services (HFS)  has filed a petition to establish paternity and for child support on behalf of the children. If your child’s mother is receiving child support, she  will presumptively have custody of the children. Unmarried fathers not living with their children will have more difficulty fighting for significant decision-making abilities but have the  right to parenting time with the children if it is in the children’s best interests.

How is marital property divided in Illinois?

Illinois divides marital property “equitably” which does not mean equally or 50-50.  However, in  some cases the court will divide the assets equally. The judge considers a number of factors including the contribution of each party to the acquisition and preservation of marital property; the duration of the marriage; the relevant economic factors of each spouse; the provisions for any children; the reasonable opportunity of each spouse for future acquisition of capital assets and income as well as other factors.  The court will also consider the allocation of marital debt when dividing the marital assets.

Can my ex-partner relocate our child out of state?

If a residential parent has to relocate for a new job opportunity or a new marriage, the parent may need to seek the court’s approval to remove your children from the State of Illinois under 750 ILCS 5/609.2. According to that statute the burden of proving that removal is in the best interest of the child is on the person seeking removal. If the relocation is eminent and the residential parent has not sought the court’s permission and you have not agreed to this, then you need to go to court immediately and enjoin the residential parent from leaving the state with the child.

What does a court consider when deciding whether a child can be permanently removed from the State of Illinois?

Many trial judges consider removal to be the one of the toughest decisions he or she has to make.  Among the factors which must be balanced and weighed for a trial court to grant removal are: the circumstances and reasons for the intended relocation; the reasons a parent is objecting to the intended relocation; the history and quality of each parents relationship with the child; the educational opportunities for the child, the presence or absence of extended family, etc.

Who pays child support and how much?

The parent who does not have primary residence of a child will usually be required to pay child support. Child support is determined by statutory factors.  For example, a parent will need to pay 20% of his or her net income to support one child; 28% of net income to support two children, and 32% of net income for three children. Net income is determined under 750 ILCS 5/505 to be income from all sources less taxes, social security payments, mandatory retirement contributions, union dues, health and life insurance premiums, prior obligations of support or maintenance, and expenditures for repayment of debt for reasonable and necessary expenses for the production of income. However, under certain circumstances a court may deviate from the statutory child support guidelines. A residential parent may also seek contribution to health insurance coverage for the child, contribution to medical expenses, and contribution to day care or summer camp, and extracurricular activities. In certain circumstances the court may order contribution to private school tuition.

Who pays for your child’s college education?

Illinois is one of about a dozen states that may order a divorced parent to contribute to the college or vocational expenses of a child. Under Illinois law, a judge can order a divorced parent to contribute to the educational expenses of a child to cover the costs of college or professional training. The educational expenses may include: room, board, dues, tuition, books, fees,  medical and dental expense, including insurance and living expenses. A trial court will consider all relevant factors when ordering, modifying or termination a parent’s contribution to college expenses including: the financial resources of the parties; the standard of living the child would have enjoyed had the marriage not dissolved; the financial resources of the child; and the child’s academic performance.

How much spousal support or maintenance will you pay or receive?

Maintenance, formerly known as alimony or spousal support,  is awarded based on numerous factors  including: the standard of living enjoyed by the parties during the marriage; the length of the marriage; the  needs of each party; the present and future earning capacity of each party; and the age and physical and emotional condition of both parties.

What is Mediation?

Mediation is a process for parties to settle their disputes with the assistance of a neutral, third party, known as a mediator. Often times the third party is an Illinois family law attorney who guides them through the process. You and your spouse will meet to discuss parenting arrangements, division of property and support. If you seek a method less antagonistic than traditional litigation to resolve the breakdown of your marriage, you should consider mediating. Mediation can be less expensive and less acrimonious than litigating issues.  The role of the mediator is not to make decisions but to facilitate and aid the parties in discovering the middle ground or a settlement solution.

What are the benefits of mediation?

Mediation gives couples the opportunity to work together to resolve their divorce or child-related issues.  When people decide to mediate, they maintain control of the process.  You don’t have a judge unfamiliar with your family deciding your fate.  Mediation is confidential. Negotiations are conducted in private and facts about your family will not be argued in open court. Mediation is more expedient and cost-effective than litigation.

What is Collaborative Law?

Collaborative law is a way to negotiate a divorce settlement in a non-adversarial environment.  This method places you in control of your divorce and not a judge who is unfamiliar with you and your family.  In collaborative law, you and your spouse each have an attorney and utilize the same expert (appraiser, forensic accountant or actuary) if necessary. You, your spouse, attorneys and experts work together to developing a parenting plan for your children and working out a mutually acceptable separation agreement.  After an agreement is made it is presented to the court for final approval. If you are unable to amicably resolve your issues, you both must obtain new counsel and litigate the unresolved issues.

What are the benefits of Collaborative Law?

Many people have found that this approach reduced stress, costs and the duration of court proceedings. It also allows the litigants to have more control of the outcome of their case. Having a case proceed to trial and allowing a judge who does not know you or your family decide your fate is very disconcerting for many people.

To avoid litigation, collaborative law allows families to work together and in a more private and controlled setting.  Unlike mediation, both parties in a collaborative law are represented by counsel and meet with their attorneys present to attempt to settle a case.

What is the process for an appeal?

Appeals involve taking a trial court decision to a court of review to determine if the trial court erred in making its decision.  The Appellate Court of the State of Illinois or under certain circumstances the Illinois Supreme Court can sit in review of a trial court decision.

The actual appellate court process involves several steps

1. File Notice of Appeal.  In general, a notice of appeal must be filed within 30 days of the court’s final ruling. Other types of appeals such as those involving retraining orders must be filed within 48 hours of the court’s order. If you fail to timely file a Notice of Appeal, you lose your right to appeal.
2. Preparation of the Record on Appeal. The clerk of the circuit court in the county where the matter was tried will be requested to compile and certify the record on appeal. Then the bound record including court files, transcripts and exhibits is transferred to the appellate court.
3. File Appellant Brief. After the record is prepared by the clerk of court, the appellant  (the person who initiates the appeal) files his or her brief which states the facts of the case at trial and presents legal arguments to convince the appellate court that the trial judge made an error in rendering his or her decision
4. Review Appellee’s Brief. The appellee’s brief rebuts those arguments described in the Appellant’s Brief.
5. File Reply Brief. The appellant files a reply brief responding to the arguments raised in the appellee’s brief.
6. Appear for Oral Argument (Not obligatory). On occasion the reviewing court may grant oral arguments and direct the attorneys to appear and respond to questions about the briefs or issues raised in the briefs.
7. Decision. The reviewing court will render a decision based on the record, briefs and oral argument, if any. The appellate court renders a written decision only.

What is the Hague Convention on the Civil Aspects of International Child Abduction?

The Hague Convention on the Civil Aspects of International Child Abduction provides an expeditious method to return a child internationally abducted from one parent by another between two countries that are member nations. Proceedings on the Convention take place in an expedited manner and can be held in state or federal court.   The Convention only applies to children under the age of 16 who have been removed or retained from their country of habitual residence.  The Treaty also applies to countries that are signatories the Treaty.

How to Make a Hague Application

Before initiating a civil court action regarding the wrongful removal or retention of a child under the age of 16, the first step is to file a Hague Application with the Central Authority of the United States (the State Department) or the central authority of the country where the child has been abducted if the country is a signatory to the Hague Convention.

The Hague Application is available from the U.S. Department of State, Office of Children’s Issues, online at www.travel.state.gov  along with filing instructions. The U.S. Central Authority reviews Hague applications and forwards them to the foreign central authority.  The central authorities act as facilitators and not act as legal representatives for either party. You may need legal counsel to assist you in preparing your Hague Application.

What is the Applicant’s Legal Burden?

The initial burden is on the Left-Behind Parent to establish by a preponderance of the evidence that the child was wrongfully removed or retained. To establish wrongful removal and retention, the Left-Behind Parent must show that the child under the age of 16 was a habitual resident of the treaty country immediately before the breach of his/her custody rights and that the custody rights were actually exercised, either jointly or alone or would have been exercised if not for the wrongful removal and retention. If the Left-Behind parent meets this burden, the Removing Parent may establish an exception to the return of the child available under the Hague Convention.

Removing Parent’s Burden for Denying Hague Petition

The Hague Convention provides limited exceptions for not returning a child to the country of habitual residence:

1. The Left-Behind parent was not actually exercising custody rights at the time of the removal or retention or has consented to or subsequently acquiesced in the removal or retention.
2. More than a year has elapsed and the child is now settled in the new environment.When determining whether  a child is “well-settled” in his/her new environment, the court may consider any relevant factor including: (1) the age of the child; (2) stability of the child’s new residence; (3) whether the child attends school or daycare consistently; (4) whether the child attends church regularly; (5) stability of the parent’s employment or other means of support; (6) whether the child has friends and relatives in the area; and (7) to what extent the child has maintained ties to the country of habitual residence.
3. A sufficiently mature child objects to being returned.No specific age has become the norm to accept the child’s testimony. Instead the maturity of the child has been determined by the trier-of-fact in a case-by-case basis.
4. There is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable.
5. The child’s return would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.