Divorce FAQs: Common Questions About Divorce in Chicago

As divorce becomes more prevalent, litigating spouses are frequently offered a detour off the path to divorce court commonly referred to as alternative dispute resolution.

Lawyers, psychologists, therapists, social workers and others offer mediation or arbitration to help divorcing couples in what some promote as a "friendlier" and "more humane" way to end a marriage.

While in traditional divorce negotiations Marital Settlement Agreements and Parenting Agreements are worked out by each side’s lawyer and then filtered back to the client, in divorce mediation, couples negotiate their property settlement and parenting agreements with a neutral mediator guiding the negotiations. Typically, lawyers play no part in the actual negotiations but may advise their clients, review any agreement reached, and present it to the court for final approval and entry.

Many clients are not suited to mediation. To begin with, most people who seek lawyers for a divorce do so because they do not want to or cannot mediate. There are a variety of reasons that a client is not capable: deceit, anger, guilt and not being in a position of equal information or strength to negotiate all impede on a person’s ability.

The mediator is often in a difficult position if one party has been the dominant force in a relationship. Women frequently do not have the same information on finances as men do, and must rely on their husband’s representations of financial conditions as truthful. While mediators are taught to recognize power imbalances, and to neutralize their effects, the mediator must frequently suggest that a party consult with an attorney, financial planner or accountant to help get the information needed to negotiate and understand the ramifications of final agreement (e.g. the tax consequences of a house sale or a spouse’s interest in the other’s professional practice).

A reputable mediator should always insist that each party retain separate counsel(s) to engage in meaningful discovery prior to mediation, and to review the agreement made through mediation before it’s made final in a court of law.

In view of today’s statistically high probability of divorce, couples often make Prenuptial Agreements to determine the disposition of their property in case of a divorce, legal separation of death.

While Illinois law provides that each individual retains sole ownership of any property owned before marriage, or acquired by gift or inheritance subsequently, romantic euphoria may lead spouses to move such property into joint ownership for the duration of their marriage.

A prenuptial agreement assigns rights to the parties in their respective property.

In January, 1990, the Illinois Legislature established the Uniform Premarital Agreement Act to govern rules that guide people in preparing agreements that will hold up in court. These contracts are enforceable in Illinois if they are made voluntarily, are fair and reasonable, use precise words, are in writing and are signed by both parties.

Pragmatically speaking, clients frequently have concerns about how the divorce process will affect their sex life.

These concerns are not generally articulated unless one’s spouse elects the make a private fact public, usually with the intention of seeking to gain advantage in issues which involve child custody/visitation or the distribution of marital assets.

In reference to child custody/visitation, in Illinois today, the mere act of cohabitation by a custodial parent with a member of opposite sex will not adversely affect custody.

Same-sex cohabitation by gay/lesbian parents may be proper and relevant to the court’s consideration in custody proceedings, but findings must be based on the best interests of the child, or, if within two years of a prior decree, the presence of serious endangerment.

Consequently, opposite or same-sex cohabitational relationships, in themselves, may not be used as the sole basis for a denial or change of custody if the court finds that such conduct does not interfere with parenting, that there is not sexual conduct occurring within the presence of the child, and there is no evidence that such lifestyle(s) have a detrimental effect on the physical or emotional well-being of the child.

In reference to marital assets, in Illinois, the grounds of Adultery have often been employed in divorce proceedings to obtain hypothetical bargaining power against the "guilty" spouse. Adultery must be proven, by the Petitioner, by a preponderance of evidence, whether circumstantial or direct. Once adultery is proven, the Petitioner may have a separate cause of action (in Tort) against the Respondent and their paramours and/or the foundation to assert a claim for dissipation of marital assets.

Dissipation is defined as expenditures by the (adulterous) spouse for purposes unrelated to the marriage. Such expenditures may include gifts, trips, "ghost payrolling" and the unauthorized transfers of cash or personal property having substantial value.

When dissipation is established, the court will typically charge the amount spent by that spouse against their portion of proceeds from the division and distribution of the net marital estate.

Obviously, in divorce, as with life in general, common sense should control. We suggest that the continuance of normal, yet discreet, sexual relations during your divorce is beneficial not only to maintain one’s physical and emotional ballast through a tumultuous time, but also to reinforce one’s feelings of self-confidence and desirability as your life begins anew.

In a rush to prevent what one pundit called ‘the most prevalent form of child abuse’, at least fifteen state courts, including California, Florida, Illinois, Louisiana, Maryland, Massachusetts, Michigan, Missouri, New Jersey, New York, Oregon, Pennsylvania, South Carolina, Tennessee and Texas, have held that it is appropriate to consider whether a parent smokes around a child in determining whether or not they should be awarded custody.

Most cases have been resolved with the court entering an order restricting the areas where a parent may smoke when a child is present, the use of air filters or aerosol fresheners when necessary, a prohibition against smoking in their automobile when the child is present, the request of seating in the non-smoking sections of public places, or a ban on smoking in the home or car for as long as two days prior to the child’s arrival.

In cases where parents refuse to agree, or violate a court’s no-smoking order, parents can and have had their visitation rights suspended or lost custody.

In addition to these restraints, a skilled attorney may suggest the entry of a court order wherein neither party discusses the issue of smoking directly with the child and both parents are restrained from performing any acts to disparage the other party in the eyes of the child; but if the child unilaterally or unsolicitedly expresses a reservation during visitation or about visitation with the smoking parent, or the smoking of friends who associate with the parent, that parent shall endeavor to discuss the issue with the child or seek counseling with the child to resolve the matter, at the shared expense of both parents.

A more disturbing problem for smoking parents may be that in our society today it is increasingly possible for others to also be concerned with the welfare of our children. It is not uncommon for doctors, school nurses, teachers, grandparents and neighbors to file a complaint of suspected child abuse, neglect or endangerment against a parent where smoking in the presence of a child is perceived to create an alleged health risk.

As of January 1998, at least three (3) parents have lost custody of children because of complaints from outside the home.

This generally occurs where the child has asthma, hay fever, allergies or other conditions which make them especially susceptible to tobacco smoke. Even recurrent ear infections have provided the basis for such complaints.

Because many of these complainants are mandatory reporters - those who have to report for the welfare of children and general good of society - many smoking parents may find that they are presumed guilty of a crime against their child without the right to confront their accuser.

A skilled practitioner in juvenile or family law will have the right to review these anonymous allegations, however, and it is strongly suggested that if the Department of Children and Family Services (DCFS) serves you with a complaint, one’s first inclination should be to call an attorney to expedite a process which may otherwise require countless hours of attendance in court, psychiatrist’s offices and ‘parenting skills’ classes before you and your child can ever resume what will hopefully be a ‘normal’ life together again.

How Long Should a Divorce Take?

Although it may seem that divorce decisions are always made by judges that are for/against the man/woman, 99% of divorce actions filed are settled prior to trial. Generally, a skilled family law practitioner can advise their clients what a judge would decide if they go to court. Often clients will elect to reach a settlement rather than submit to the added time, expense and emotional upheaval that a divorce trial requires. The length of time it takes to complete a case depends upon how complicated the financial or custody situation is, the court’s calendar, and how quickly the parties can agree to resolve it. Another tangible is your spouse’s attorney. If they are obstructive, uncompromising or bent upon running up the time and costs of litigation, they must be dealt with aggressively. Suggestion is made that despite your other differences, spouses should agree between themselves that any attorney who does not facilitate the orderly progression of their case should be immediately discharged. Where there is agreement about custody and very little property to be divided, it may take no more than a couple of weeks. Cases of increasing complexity require more time and can take anywhere from six months to a year. The rare court trial that occurs is generally the culmination of two or three years and can cost tens of thousands of dollars. How Much Should a Divorce Cost? "A lawyer’s time and advice is his stock and trade" - Abraham Lincoln Because divorce is often a harrowing struggle over custody, child support, maintenance and property division, its cost will depend on several factors: the amount of time your attorney must put into the case, the complexity of the issues involved, the degree of conflict between you and your spouse, your attorney’s level of expertise, and how the case is concluded. The court may order each party to pay his or her own legal fees. Or one spouse may be ordered (or agree) to pay all or part of the other’s fees. These matters are often decided by each spouse’s financial resources or by who initiated the proceedings. It is important to note however, that as fees are paid from the couple’s marital assets, in effect both parties pay their own way. Suggestion is made that prospective clients determine the issues at stake prior to consultation with an attorney and then predicate the requisite legal fees upon a risk-to-reward ratio (i.e., what you have to pay for what you hope to get). That way, the fees quoted will seem more realistic in relation to the work you expect to be done on your behalf.