MATTENSON & GORDON
ATTORNEYS AT LAW

Understanding Divorce

The Basics  |   Divorce Facts  |   Mediation  |  Getting Organized   |  Getting Help

 

The Basics

In a dissolution of marriage, there are basic issues that have to be resolved either through settlement or by trial. These include:

 

Grounds: Grounds must be established in all divorce cases. In most states including Illinois, the advent of No-Fault Divorce has removed from couples the responsibility of proving traditional grounds such as desertion, or physical or mental cruelty. To obtain a No-Fault Divorce couples must prove irreconcilable differences and live separately for two years, or make a joint written stipulation that they have lived separate and apart for at least six months.

Property: There are two types of property: marital and non-marital. Marital property includes all possessions and assets acquired by either party during the marriage but general excludes the following non-marital property: a) Gifts, b) Inheritances, c) Items or money excluded by agreement of both parties, and d) Anything owned before the marriage.

Marital property is divided by established criteria including age, health, length of marriage, standard of living, contributions to the marriage, future earning potential, and tax consequences of the award. In making its property award, the court may also consider dissipation of assets by a spouse, the non-marital assets owned by either party, and with whom the children will reside.

Custody: All parents are on equal footing when it comes to determining custody. The “Tender Years Doctrine” which held that mothers are the more appropriate custodians of young children, no longer applies. The focus in today’s courts is the best interest of the child, and the decisions are based on several criteria including the wishes of the parents and child, family relationships and interaction, the child’s adjustment to home, school, and community, and the mental and physical health of all individuals involved. The parties and the court may rely on the testimony of psychiatrists, social workers, and other qualified individuals in making their decisions.

The threat of physical violence may also affect custody as would a potential custodial parent’s unwillingness to allow a child to foster a relationship with the non-custodial parent.

Either or both parents can ask for, or the court can award, joint custody in certain circumstances. Joint custody does not guarantee equal access to the child, but does provide both parents with the right to participate in major decisions for the child. Sole custody would assign these responsibilities to the custodial parent.

Joint Custody is managed through a Joint Parenting Order embodying an agreement by the parties and approved by the court. In awarding joint custody, the court considers among other factors the parents ability to cooperate with one another for the benefit of the child and the residential circumstances of each parent.

Maintenance: Formerly known as alimony, Maintenance is available to spouses in amounts and for periods of time as may be appropriate. Maintenance, which may be deductible by the spouse who pays it and taxable income to the recipient, may be awarded to parties in long-term marriages, in marriages with extraordinary standards of living, or for situations in which spouses require training in order to earn a living and become self-sufficient. The court looks at the property awarded each party, the needs and abilities of the parties, as well as other significant factors to determine the need for, amount and duration of maintenance.

Child Support: In Illinois, child support is mandatorily deducted from paychecks unless otherwise directed by the court. In the majority of cases, the amount is determined by established guidelines, unless the court deviates because of specific circumstances.

Attorney’s Fees: Either spouse may petition the court for an order directing the other spouse to pay all or a portion of their attorney’s fees and costs. The court makes its decision based on each party’s ability to pay, among other factors. The court can also assess fees against a spouse who violates a court order.

Temporary Provisions: During the pendency of a dissolution, the court may award temporary maintenance and/or child support, enter an order providing protection from physical harm, restrain parties from spending or transferring assets, or other appropriate relief.

Settlement: At any time during proceedings the parties can resolve any or all of the issues, and their settlement will be approved by the court if not unreasonable.

 

Divorce Facts, Contested and/or Uncontested

Petition: For divorce, legally referred to as dissolution of marriage, filed by one spouse (petitioner) with the clerk of the circuit court. Includes grounds and all basic information regarding the parties, children, and the marriage. Requests property and custody and support if needed.

Summons: Served to notify the other spouse (respondent) that a petition has been filed and that an Answer should be filed.

Appearance and Answer: Respondent must file an Appearance and a Response, usually an Answer, to petition with clerk’s office within 30 days of service of summons.

Motion for Default: Filed by petitioner if respondent does not respond to petition. Last chance to respond. If disregarded, petitioner may be granted a dissolution of marriage by default.

Grounds for Divorce: Most states have No-Fault Divorce, but Illinois also provides a variety of grounds based on marital conduct. Conduct, however, is not a consideration in the division of property in a divorce.

Contested Divorce: The couple has disputes over grounds, division of assets, maintenance or custody that they cannot resolve.

Temporary Hearings: Judge rules on motions for temporary relief requesting maintenance, custody, and protection of assets from removal, etc. Both spouses must appear in court. Court orders are issued to enforce rulings – effective only for duration of case or until further order.

Uncontested Divorce: (1) Usually occurs when a couple can divide assets and resolve disputes. (2) Couple involved in a contested divorce reach settlement.

Settlement Agreement: Sets out terms of final settlement as agreed to by the parties. Drafted by lawyers.

Discovery: After Appearance has been filed and in preparation for trial, both sides collect information on each other – usually relates to finances and fitness for custody.

Pre-Trial Conferences: Informal meetings between judges, attorneys, and sometimes clients to discuss possibility of settlement and/or to organize trial issues for efficiency.

Prove-Up Hearings: Settlement agreement is presented to judge who hears testimony by parties regarding grounds and terms of settlement.

Decree (Uncontested): Drafted by attorneys, must be approved by judge. Includes judge’s findings and settlement terms. Official only after signed and entered by court.

Settlement: Couple reaches an agreement on one or more disputed issues (grounds, division of assets, support, maintenance or custody) and can come to settlement without going to trial, which makes all or a portion of the proceeding contested.

Trial: Both sides go to court to present their cases. Judge hears testimony, evidence and arguments on each disputed issue (regarding grounds, assets, custody, maintenance, and attorneys fees) and makes rulings. Lasts one to ten days on average.

Decree (Contested): Judge determines grounds, maintenance, custody, and/or division of assets, rules on findings and grants divorce. Official only after signed and entered by the court.

Post Decree Petitions: One spouse makes motion for hearing to have court enforce the divorce decree, to modify custody or support, to request payment of college expenses, to remove a child from the state, or for other relief. A new matter which begins with a petition. Judge hears arguments and makes rulings. May be contested or uncontested.

 

Mediation

Mediation for divorce and child-related issues is a non-adversarial approach to handling the dissolution of marriage. The mediator is a neutral party who encourages and assists parties in understanding the issues, reaching a fair settlement, and entering into a legally recognizable agreement. At Mattenson & Gordon we offer mediation services built upon many years of experience to direct the process and promote an appropriate structure and atmosphere for problem solving.

The mediation process takes the parties out of the judicial system and gives them the privacy, convenience and control of their future unavailable by litigation. A mediated agreement on one or more issues in the divorce is presented to and approved by a judge but otherwise avoids lengthy legal processes. Mediation is appropriate in a variety of circumstances but is especially successful in issues regarding children. Financial issues have also been mediated successfully in many cases.

Mediated settlements can be highly cost-effective and particularly useful in avoiding the stress and emotional issues associated with litigation.

 

Getting Organized

The decision to divorce can be made more clearly, and the divorce process simplified, by organizing finances and other personal business matters. A good way to begin is by:

If a private business exists, obtain tax returns and financial statements. Gather real estate documents such as the closing statement for your home. Organize your papers relating to inheritances, gifts or property owned before the marriage. If there is a premarital agreement, obtain a copy. Document any valuable property, such as antiques, artwork, silver, and collectables by making a list and photographing them.
Advise your attorney of any unusual financial transactions, gains, losses, purchases, sales, pending litigation or claims against you or your spouse.

 

Getting Help

Mattenson & Gordon believes it has a duty to be personally supportive of its clients and, in keeping with this philosophy, encourages individuals facing marital and family disputes to consider therapeutic counseling. The firm has found that assistance on this level during a trying time helps clients build an effective support system and make responsible decisions concerning their welfare. To facilitate the proper handling of a clients matters, we will be happy to work closely with your business or a personal attorney, accountant or therapist.