Andrew Spivack | Q & A’s
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Q & A’s

Divorce is a topic that is widely discussed and information that we receive concerning divorce and the legal process is often inaccurate. What we hear from other people is often incorrect, sometimes we do not hear it correctly and sometimes we do not repeat it accurately.

 

As information flows through hundreds of conversations, it can easily become distorted and turn into misinformation or misconceptions. Misinformation leads us to having incorrect beliefs or misunderstanding which, in turn, sets us up to making avoidable mistakes and not the best decisions.

 

The following frequently asked questions are those questions that in my experience divorcing parents ask the most. The answers are intended to provide information and clarify many misunderstandings and misconceptions regarding divorce in Illinois.

1. Can my spouse prevent me from getting a divorce?

No. The law has changed in Illinois and all the fault grounds have been eliminated, effective January 1, 2016. Now if the parties have been separated 6 months or longer preceding the entry of the judgment, there is an irrebuttable presumption that the requirement of irreconcilable differences has been met.

The court will then enter a judgment for dissolution of marriage if the court determines that irreconcilable differences have caused the irretrievable breakdown of the marriage and efforts at reconciliation have failed or future attempts would be impracticable and not in the best interests of the family.

2. Does the Court make us go to marriage counseling?

No, counseling can take place if the parties agree but it would not be ordered by the court.

3. Annulment: How short does the marriage have to be?

The length of time of the marriage is not a basis for an annulment now known as a declaration of invalidity of marriage.

4. When does a legal separation take place?

In order for a legal separation, a judgment for legal separation has to be entered by the court. One can separate from their spouse but in order for a legal separation a judgment must be entered.

5. If a couple already agrees on everything, should they use mediation?

No, mediation would not be necessary. Mediation is done in order to try to reach an agreement regarding either financial issues or issues involving children including allocation of financial responsibilities and parenting plans.

6. What happens to my health insurance?

A separate insurance policy of your own would be needed after a divorce. Typically a conversation or spin-off policy of your own would be available up to 36 months with your existing insurance company under COBRA laws.

You may also obtain your own insurance with a different company if it is less expensive.

7. Does it help to be the first to file?

From the standpoint that your case would get started and you may have some immediate issues that need to be addressed and resolved quickly in court. If you wait for your spouse to file, your spouse may not file or you may be waiting a long time.

8. What is the deal on using one lawyer?

It would be a conflict of interest for one attorney to represent both parties. In cases where there is only one attorney, the other party does not have an attorney and represents himself or herself. This sometimes happens when the parties have reached an agreement and one party chooses not to have an attorney.

 

9. Can I date before the divorce is final?

This is more of a moral question than a legal one. Sometimes in cases involving custody of children, however, it can be a factor.

10. Does Illinois have any waiting periods?

Yes, you need to be a resident of Illinois at least 90 days in order to obtain a divorce. Also, time periods apply for establishing irreconcilable differences, i.e. six months separation.

11. Can I ask for a jury trial?

No, the trials are bench trials with just one judge.

12. What is arbitration and mediation, and does Illinois allow its use in divorce?

Parties may choose to try to mediate their divorce by meeting with a trained mediator who is typically an attorney if it relates to financial issues or a counselor if it relates to issues having to do with children. Both parties are usually also represented by their own counsel. If an agreement is reached it needs to be prepared by the parties’ attorneys and the court proceedings are handled by their attorneys. Mediators are different than arbitrators. Arbitration can be used in disputes regarding attorney’s fees.

13. At which age can the kids choose who they want to live with?

Children do not decide who they live with, the judge decides. However, their preference is one of several factors the Court considers in determining their best interest and in establishing parenting plans and allocation of parental responsibilities.

14. How much is the cost for a divorce?

The cost of a case depends on the amount of time needed to resolve all of the issues in the case. Attorneys charge by the hour for office and court time and normally require the payment of a retainer fee.

15. Do we have to be separated six months before we can file?

No, you do not need to be separated at all in order to file a case. You do need to be separated for six months prior to the entry of the judgment.

16. Can a pregnant person get divorced before the baby is born?

Yes, however you would need to go back to Court to have child support determined as well as issues having to do with allocation of parental responsibility and parenting plans. You may want to wait until the baby is born before you get divorced

17. Does child support include day care, extracurricular, or activity expenses?

No, but you can also request a contribution to these expenses in addition to receiving child support.

18. Does the spouse that received child support have to pay taxes on it?

No, child support is not subject to income tax.

19. My spouse is telling me to move out. Do I have to?

No, unless it is ordered by the court during the case under certain extraordinary circumstances and your spouse is granted temporary exclusive possession of the residence.

20. If I do move out, is it considered abandonment?

No, if the property was purchased during the marriage it will be considered martial property subject to being divided equitably by the court unless the property was acquired by gift or bequest by your spouse or was purchased with non-martial funds and your name is not on the title to the property.

21. Can I buy my own house before the divorce is final?

Yes, but not a good idea unless your spouse waives any interest in the property. It would be better to wait until after the divorce.

22. Does having an affair affect how money, assets or property gets divided?

No. Marital misconduct, i.e. having an affair, cannot be taken into consideration in dividing assets and property.

23. If we reach a settlement, do we still have to go to court?

Yes, a settlement agreement needs to be prepared and approved by the court and incorporated in the judgment. A trial is not needed but an uncontested court proceeding takes place called a prove-up.

24. How long does it take to get a divorce?

The time can vary depending upon whether the case gets settled or if the case has to go to trial. It can be completed more quickly if it settled then having to wait for a trial date.

 

Andrew Spivack has represented hundreds of clients in divorce, custody, spousal support, child support, arrearages, retro support, visitation, paternity and other family law cases. Andrew Spivack believes every person should have an experienced and knowledgeable attorney to help advise and guide them through the difficult and important decisions that they face with the goal of achieving the best outcome possible. Your satisfaction with the ultimate outcome of the family-related concern you face demands both experience and an aggressive advocate.

 

If you need an experienced lawyer’s help in a divorce, post-decree issue, custody case or have any type of family law matter, contact the Law Offices of Andrew L. Spivack. You have the right to expect to be educated, counseled, and prepared for the decisions that face you and your children, family and future.

 

I can be reached by phone: 312-274-0600 (downtown) or 847-498-9500 (suburbs). Email: andrewspivack@gmail.com

 

Let Andrew Spivack be your first call, not your last!