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Frequently Asked Questions

What causes divorce?

Ongoing criticism by one spouse, extreme control of one party and the marriage by the other, emotional and verbal distancing are most frequent. In many cases there has been an underlying dissatisfaction on the part of one or both spouses for a long time and then something, e.g. (last) child graduates from high school, a parent dies, happens and that is the catalyst. Generally, one of the parties decides it is time to take action. Sometimes people just grow apart. They marry young and after 20 or 30 years they have matured and changed and the relationship doesn’t remain. In my practice, physical abuse is not frequent (fortunately). But, sadly, it does happen. If you are being abused, please seek help. You are not alone.

To avoid a bad marriage, how should I protect myself from a charmer?

Be suspicious if the man (or woman) meets you through the internet (no common friends or co-workers), always sees you at your place or in public (never at his/her home) and doesn’t introduce her to any of his/her friends or family. Be very skeptical, especially after 2 or 3 months of this behavior. You might also try googling the person’s name to see if there is anything suspicious. Also look at and reputable background check websites. Finally, he/she if wants to share finances or asks for money … run! That is rarely a good sign.

If I go after my child’s father for paternity, does he have to get visitation?

If he is legally determined to be the father he has the right to visitation with his child unless he is found to be unfit or a serious risk of harm to the child.  The court determines visitation using the same factors that are to be used in divorce cases.

My wife moved in with her boyfriend. Do I have to pick up my kids there for visitation?

Unless your former wife moved many miles away which would create a geographic hardship to you or there is some risk of danger to you if you go there, you probably would be required to pick up the children at his residence. Of course, if there is a risk of danger, you should consider if your children are safe and take action if they are not.

My husband is behind on support. Can I deny him visitation?

No. Child support and visitation are separate from each other. Being behind in child support payments is not a basis for withholding visitation. Likewise, if the custodial parent withholds visitation, that is not a basis for stopping child support payments.

My spouse just filed for divorce. What’s the first thing I should I do?

The first thing you should do is talk with an attorney.  You need to know what the law provides regarding children, support and property when a marriage is dissolved.  You also need to know what the court rules say you need to do to participate in the case.  Time is also important so you should see an attorney as soon as you can.

I’m considering filing for divorce, what steps should I take?

You should first talk with an attorney.  Even if you have a very small, simple case and you plan to represent yourself, you should have information from a lawyer about the issues that will have to be determined and the court process in which it will occur.

Can I date before my divorce is final?

Legally you can date before the divorce is final.  However, there are reasons it might not be a good idea.  One reason is that it might have an influence in a custody decision if custody is an issue.  If you spend money to date or give money or gifts to a boy/girlfriend while you are still married, that is dissipation and would be considered against you when property is divided.

Can we both use the same attorney in an uncontested divorce?

No.  You cannot both be represented by the same attorney.  If one party has an attorney and the other does not but rather represents him/herself (pro se), the attorney can draft the agreement that the two parties reach between themselves.  The attorney and his/her client can then go to court to get the divorce.  However, the attorney cannot represent the other party or give that person any legal advice.  It is better if both people consult with their own attorney even if one decides to represent him/herself in the court case.

I’m a man. Is it harder for me to get custody of my children?

The Illinois Marriage and Dissolution of Marriage Act (IMDMA) was changed substantially in 2016 and the term custody is no longer used. The law now refers to allocation of parenting time and allocation of parental decision making. What you refer to would be joint allocation of parenting time and decision making. The law is gender neutral, but rather looks at many factors to determine what is in the best interests of the child. It should not be harder for you just because you are a man.

How does joint custody work?

As stated in the answer to #8 above, the court now allocates the parental responsibilities of time and decision making. Joint allocation of those would mean that both parents spend significant time with the child(ren) and share significant decision making regarding medical/health, religion, education and extra-curricular activities.

How much influence are my child’s wishes in a custody battle?

The child’s wished are not usually a significant factor in a custody contest, particularly young children’s wishes.  In some situations an older child’s wishes will have more significance to the court if the reasons are well founded.

My husband doesn’t want to contribute to my child’s college expenses. What does the law say?

The Illinois Marriage and Dissolution of Marriage Act provides that a court may order one or both parents who have been divorced to contribute to the college education expenses of their child.

However, the IMDMA was amended January 1, 2017 to provide that a parent’s liability in most cases for tuition and housing should not exceed the amount of those costs at the University of Illinois Champaign-Urbana campus. Also, the parent cannot be held liable for expenses incurred by a child over 23 years of age, except for good cause shown and then not beyond the child turning 25.

Can my ex-spouse move out of state with our children?

Yet another change in the IMDMA is the provision allowing a parent to move out of state with a child if it is within 25 miles of the current Illinois residence. If the distance is more than 25 miles, the other parent has to agree or a court has to allow the move. In any event, a court order should be entered allowing the move.

Can I record phone calls with my ex-spouse as evidence of bad parenting?

Probably not. It is a violation of the Illinois wiretapping law to record someone who has an expectation of privacy unless you have their consent. So you would first have to tell the person that you were recording the conversation and they not object but continue talking for it to be an acceptable recording. And, keep in mind, a recorded conversation that you believe reflects bad parenting on the part of your ex, might not be seen the same way by a judge.

What is a “postnuptial agreement”? How’s it work?

A postnuptial agreement is an agreement between spouses, that is, after they are married.  It can cover a great many areas such as property division and support at death or divorce (the same as for prenuptials), or how to handle property and income during the marriage after the agreement is effective.  Again, issues regarding children might not be upheld by a court if challenged by one of the parties.  An attorney should be consulted when you consider having a post-nuptial agreement.

How long can a prenuptial agreement last?

A prenuptial agreement can last indefinitely, until death or divorce.  However, if the parties agree, it can also have review requirement at a specified time or an expiration date, e.g. 10 years after the marriage if there is no divorce pending.

What assets can or can’t I protect in a prenuptial agreement?

You can protect almost any asset you want whether acquired before or after your marriage, including your income after the marriage.  You must not mix the asset with your spouse or put his/her name on the title of the asset.  Special rules apply to retirement plans which are often protected by federal law.  The exception would be if the asset is determined by a court to be necessary for the support of a child born to you and your spouse after the marriage.

Why should I consider a prenuptial agreement?

There many reasons you might want a prenuptial agreement. If you have children by a prior marriage or relationship and want to protect property for them in the event of your death it could be done through a prenuptial agreement.  Prenuptial agreements also can provide for terms for property division and spousal support, including barring support, in the event of a divorce.  Some parties have prenuptial agreements to provide how they will manage money and pay household and personal expenses during the marriage.  There are countless reasons you might want to have a prenuptial agreement.  To more fully consider the question you should speak with an attorney experienced in domestic relations law.