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Frequently Asked Questions

Overview

Until about 50 years ago, divorce was granted on the basis of some marital misconduct such as adultery or physical abuse, and the spouse at fault was punished by receiving a smaller share of the marital property or being denied custody of his/her children. However, this has changed. Now, parties may choose to file for a no-fault divorce and any misconduct will not affect the divorce proceedings.

What is a fault-based divorce?

A fault-based divorce is one in which one party blames the other for the failure of the marriage by citing a legal wrong. The grounds include: adultery, physical or mental cruelty, willful desertion, alcohol or drug abuse, insanity, bigamy, impotence, infection of the other spouse with a communicable disease, cruel and inhumane treatment, attempted poisoning or otherwise endangering the life of the spouse, or conviction of a felony.

What is an uncontested divorce or an agreed divorce?

Uncontested or agreed divorces happen when both spouses agree on all terms of the divorce such as property and debt division, as well as child support, custody, and visitation.

Is it possible for both spouses to have the same attorney in a divorce case?

One attorney cannot represent both parties in a divorce case since it is impossible to advise what is in each person’s best interest without disadvantaging the opposing spouse. Basically, an attorney can only fully protect one party’s interests. By nature, divorce cases are extremely uncertain, and the position of the parties changes rapidly.

What is the general process of a divorce case?

Initial Filing of Documents – One party called the Petitioner files the divorce petition and summons with the clerk of the court’s office

Service – The county sheriff or a special process server personally delivers the divorce petition and attaching documents to the other spouse called the Respondent

Response – The Respondent (the spouse who receives the divorce petition) must then answer the petition and file an appearance with the clerk of the court’s office

Case Management/Status Conferences – Periodic meetings in the courtroom between the parties and the judge are held regarding the progress of the pending case

Discovery – Each party must exchange with the other party all financial statements and other related documents

Mediation and Evaluation – This does not happen in every case, but it can if the judge decides it is necessary and helpful to the parties

Pre-Trial Conference – This is a conference held between the attorneys and the judge to discuss any possible settlement agreement

Trial – The attorneys present evidence and arguments for both sides and then the judge decides the unresolved issues (regarding child custody and visitation, child/spousal support, or property division).

 

How does the judge know who is telling the truth and who is lying?

Both parties are required to provide information and documents under oath concerning any issue relevant to the case. If there is a dispute over child custody or visitation, the parties may be ordered to mediation, or a custody expert will be brought in to evaluate the parties. The court may also appoint a Guardian ad litem (GAL) to represent the children, and conduct an investigation and make recommendations to the court. The judge has discretion as to whether or not to interview the child in camera (in the judge’s chambers). Essentially, the judge will hold hearings or a trial at which both parties present testimony and other evidence. The judge is required to make his/her decisions based upon the law and evidence.

Is there a trial in every divorce case?

No. Most family law cases are settled, sometimes after several years of spitefulness and court proceedings. The few cases that are not settled go to trial before a judge.

If I think the judge was wrong or unfair on his/her ruling, is there anything I can do?

Yes. A party who strongly does not agree with the outcome of a divorce trial has a right to appeal. However, appeals can be very costly and lengthy. Illinois law gives the trial judge a lot of discretion, and appeals are not always successful.

What is mediation?

Mediation is the process of attempting to resolve your divorce case issues outside the court through a qualified third party mediator.

How long do I have to live in Illinois to obtain a divorce?

One of the parties must have resided in Illinois for at least 90 days before the court can grant a divorce in Illinois. If the parties have a minor child, then Illinois must be the home state of the child for at least six months.

What is a Joint Simplified Dissolution of Marriage and how do I qualify?

A Joint Simplified Divorce is a special divorce proceeding created by statute that allows married couples to quickly and easily secure a divorce. The legal requirements include the following:

• The duration of the marriage must not exceed 8 years;

• There are irreconcilable differences, the parties have been separated 6 months or more, and efforts at reconciliation have failed or future attempts would be impracticable and not in the best interests of the family;

• There are no children and neither party is pregnant by the other party;

• Neither party is dependent on the other for support;

• Each party waives the right to spousal support;

• Neither party has an interest in real estate;

• The total fair market value of all marital/civil union property, after deducting all debts owed, is less than $10,000.00;

• The total annual income of both parties is less than $35,000.00 and neither party has a gross annual income from all sources in excess of $20,000.00;

• Both parties have disclosed to each other all assets and tax returns for all years of the marriage; and

• The parties have executed a written agreement dividing all assets in excess of $100.00 in value and allocating responsibility for debts and liabilities between themselves (you must file a copy of this written agreement with the divorce petition).

 

How much will a divorce cost?

It depends. Many factors affect the cost of a divorce. The more contested the divorce, the more expensive it will be. The main determinant of how smoothly the process will go is the level of cooperation between the parties and their willingness to compromise.

Can I prevent my ex from seeing my children if he/she owes me child support?

No. The right to visitation is never conditional on payment of child support.

How is child support determined?

The Illinois legislature enacted the following statutory guidelines for minimum support:

1

20%

2

28%

3

32%

4

40%

5

45%

6 or more

50%

Does the court always have to follow the statutory child support guidelines?

A court may deviate above or below these guidelines based on the best interests of the child, to be considered in light of evidence including but not limited to the following relevant factors:

• The financial resources of the child;

• The financial resources and needs of the custodial parent;

• The standard of living the child would have enjoyed had the marriage not ended;

• The physical and emotional condition of the child and his/her educational needs;

• The financial resources and needs of the non-custodial parent.

A court may deviate below the guidelines only on entering specific findings to justify the lower amount. No specific findings are needed to deviate above the guidelines, but in practice, the courts generally state their reasons, which usually have to do with the children’s special needs or the condition of the custodial parent.

Can I get child support if I never married my child’s other parent?

Yes. Both biological parents have a duty to financially support their child. If you are a mother and your child’s paternity has never been established, you may need to initiate a paternity proceeding and establish paternity before a support order can be entered by a judge.

How does the judge decide which parent will get custody of a child?

In the majority of cases, parents are able to come to an agreement regarding child custody and visitation. In the rare occasions, when the parents cannot agree on a custody arrangement, the court will make the decision for them after considering the totality of the circumstances, with the overriding consideration being the child’s best interests. Here are the factors the court considers:

• The child’s age, gender and physical and mental health

• The parent’s physical and mental health and lifestyles

• Any history of abuse

• The emotional ties between the parent and the child

• The parent’s ability to give the child guidance

• The parent’s ability to provide the basic necessities, such as food, shelter, clothing, and medical care

• The child’s routines, including home, school, community, and religious

• The willingness of the parent to encourage a healthy, on-going relationship between the child and the other parent

• f the child is above a certain age, the child’s preference; and Which parent has been the primary caretaker of the child.

How is property distributed as part of the divorce?

Property is first determined by the Court to be either “marital” or “non-marital” property. Generally, property that was acquired during the marriage (from the date of the marriage to the date of the divorce) is considered marital property, with a few exceptions. This marital property then will be divided equitably between the parties. Equitable division does not mean equal division. In fact, many cases specifically spell out that equitable distribution does not always mean equal distribution. Non-marital property is property that a spouse had prior to the marriage and property received as a gift or inheritance, with a few exceptions. There are too many statutory and common law exceptions to name here.

My spouse is hiding assets – how can I prove it?

During a divorce case, both parties must exchange mandatory discovery documents, such as a financial disclosure statement (specific to the county where the divorce case is pending), interrogatories, and copies of various financial documents. Interrogatories are questions regarding a variety of matters related to property division, spousal support, child support, and custody, and so on. Parties will also exchange documents that reveal each party’s income, assets, and liabilities. Documents such as tax returns, personal financial statements, bank account statements, brokerage house records, real estate records, loan applications, and business records usually give a clear indication of each party’s financial situation. In addition, each spouse may be deposed by the other party’s attorney. At deposition, the questioned spouse will respond, under oath, to questions designed to gather all necessary information about his or her assets and income. Often, though, spouses do not comply in good faith with the requests. However, there are ways to effectively acquire documents or other evidence regarding assets your spouse attempts to hide. It’s a matter of creative discovery, persistence, and diligence.

What is spousal maintenance or alimony?

Maintenance or spousal support is what used to be called alimony. It is support paid by one spouse to the other spouse to allow the lesser earning spouse to live a similar standard of living as he/she held during the marriage. There are numerous factors the court looks at in determining whether maintenance is appropriate, including the length of the marriage, present and future earnings and income of each party, the financial needs of each party, the standard of living established during the marriage, the age and physical condition of each party, and several other factors. There is no clear formula used to calculate the amount or duration of the maintenance to be paid. Generally, in short-term marriages, neither party is likely to end up with an award of spousal support, absent extraordinary circumstances.

How does the law define domestic violence?

Orders of Protection can be issued by the court when abuse exists. Under Illinois statute, abuse means “physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation”. Harassment means “knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances; would cause a reasonable person emotional distress; and does cause emotional distress”. Unless there is a very good excuse, all the following are presumed to cause emotional distress:

• Creating a disturbance at your place of employment or school;

• Repeatedly calling your work or home;

• Repeatedly following you in a public place;

• Keeping you under surveillance;

• Threatening physical force, confinement or restraint; and

• Improperly concealing a child from you, or threatening to remove your child from Illinois or from your care.

What is an annulment and what are the requirements?

An annulment is a legal determination that the marriage was never legally effectuated and in theory never happened. It should not be confused with an annulment by a church, which has no legal enforcement. To legally annul a marriage one of the following must be proven by a court of competent jurisdiction:

(1) That one of the parties lacked consent to the marriage at the time because of either mental incapacity, drugs, or other incapacitating substances;

(2) That a party was induced to enter into the marriage by force or duress, or fraud involving the essentials of the marriage; or

(3) That a party lacks the physical capacity to consummate the marriage and the other party did not.

What does bankruptcy offer?

Most importantly bankruptcy offers "relief" from debt. Bankruptcy takes unmanageable debt, consolidates it and either wipes it out completely or allows for a repayment plan that will pay off a portion of the unsecured debt. But bankruptcy also offers psychological relief. One a bankruptcy case is filed, a person no longer has to worry about monthly credit card bills or phone calls from creditors, relieving a person from stress and anxiety.

What is a discharge?

A discharge is the ultimate goal in bankruptcy. It extinguishes the unsecured debt and prevents creditors from going after a person for money in the future. A discharge is obtained in both Chapter 7 and Chapter 13 but the way it is acquired differs.

How does Chapter 7 work?

Think of Chapter 7 as form of liquidating your assets and your debts. Once a case is filed, the trustee appointed by the bankruptcy court takes the Debtor's non-exempt assets, sells them, and payoffs of the unsecured creditors. In majority of cases, Chapter 7 debtors do not have any assets of value, their major debt is unsecured debt: such as credit cards and medical bills. Within three to four months of the filing, any qualifying Debtor receives a discharge and all of his or her debt is wiped out.

How does Chapter 13 work?

Think of Chapter 13 a repayment plan. After calculating income and expenses, the Debtor proposes a repayment plan that lasts three or five years during which time the Debtor makes monthly payments to the bankruptcy trustee. The trustee in turn disburses those funds to the creditors. If the Debtor is behind mortgage payments, Chapter 13 allows the debtor to become currents on the mortgage payments by including the mortgage arrears in the plan. The Chapter 13 plan also allows for the removing of a second mortgage if certain conditions are met. After making all scheduled payments, the Debtor receives a discharge and a portion of the unsecured debt that was not paid off by the plan get wiped out.

What is "lien stripping"?

If a debtor has a second mortgage and the house is underwater (meaning that the value of the home is LESS than the amount of the first mortgage), the Chapter 13 plan allows that mortgage to be "stripped" from the home. That debt is then placed into a general unsecured pot and is paid cents on a dollar over the next three or five years. After the debtor successfully completes all the payments on the plan, the remaining balance on the second mortgage is discharged, along with the other unsecured debt, and the lien on the home is extinguished.

Can I discharge my student loans in bankruptcy? How about child support payments?

No, you cannot discharge student loans or child support payments in bankruptcy. Section 523 of the bankruptcy lists all the exemptions to discharge which also include: certain tax claims, debts to governmental units for fines and penalties, debts for willful and malicious injuries to person or property, among others.

How will bankruptcy affect my credit score?

Bankruptcy will no doubt lower your credit score but that does not mean that you will not be able to obtain credit. There are numerous companies that will extend credit to post-bankruptcy individuals, however, the interest may be high. A credit score alone should not be a huge factor in making the decision whether to file for bankruptcy or not. If you are struggling with monthly payments and are often late, your credit score is most likely already hurt. Starting fresh after bankruptcy will give you a chance to rebuild your credit.

Is my life insurance considered an asset?

Generally, there are two types of life insurance: whole life and term life. Term life insurance has no cash surrender value and therefore is not considered an asset. Whole life insurance does have cash surrender value and that amount may be seized by creditors. However, if the beneficiary is the spouse or children of the insured, then the policy is exempt 100%.

Do I have to hire an attorney for my closing?

Although Illinois does not require that an attorney conduct your closing, almost every Buyer hires a closing attorney.  Since the cost of title insurance does not increase when an attorney represents you at a closing, most Buyers hire one. While title insurance companies are generally reliable and efficient, their services are limited to conducting the closing. Their employees cannot draft, review or interpret your Contract. Your attorney will negotiate the terms of your Contract, especially if there are inspection items, and provide vital guidance to you throughout the whole process.

What closing costs am I required to pay at closing?

In Illinois, the Buyer usually pays the following costs at closing:

1. Title Insurance related Costs. These include the cost of the lender’s insurance policy and the closing fee. If it’s a cash deal, the closing fee is split evenly among the Buyer and Seller.

2. Transfer Tax:  When a title changes hands from one owner to another, a transfer tax will be imposed locally (by state, city and county).  The responsibility of paying these fees (state and county) many times are paid by the Seller. For many cities and local municipalities (counties)
there are local transfer charges which vary by amount and are applied to either Buyer or Seller. Therefore, most of these costs the Seller will pay, but you may pay a portion of the costs as well. The amount depends on where the property is located and on the purchase price. For example, a home located in Chicago, Illinois, and county of Cook, with a purchase price of $200,000, the Seller will pay for the state transfer tax (about $200), county transfer tax (about $100) and a portion of the City transfer tax (about $600).  You, the Buyer, will pay the other portion of the city transfer tax of about $1,500.

3. Home Inspections:  The average cost is $300 to $600.  This is optional, but usually highly recommended for residential homes so that you are aware of any hidden defects or upcoming repairs that the home needs.

4. Recording Fee. The cost to record Deeds and Mortgages in the Recorder’s Office ranges from $50 to $150. In Cook County, the cost of the first two pages is $40.00 and $2.00 for each additional page. Most Deeds are less than 2 pages and most mortgages are16 to 30 pages.

5. Costs Associated with Mortgage Financing. If you are financing your purchase, your lender will provide you with a Good Faith Estimate of Closing Costs. The Good Faith Estimate will include the above described costs as well as the Lender's costs.

6. Attorney Fees. If a Buyer hires his or her own attorney to review the closing documents, this charge will generally appear on the closing statement.  For residential properties, this is usually a flat fee amount and usually varies anywhere from $500 to $700.

7. Other Fees:  Of course there may be other fees associated with buying your property, such as a condominium association fee for moving in or to transfer ownership, etc.  Your closing attorney should explain these fees to you in detail prior to or at closing.

Must I be present for my closing?

If it’s a cash deal (no lender financing), then most likely you may not have to attend closing. Your attorney can prepare a Power of Attorney document, and can act on your behalf.  If you are purchasing the property by getting financing though a lender, then you must check with your lender to make sure a Power of Attorney will be acceptable.  Most of the times, though, the lender would prefer that you attend the actual closing.

What types of claims would a Title Insurance Policy protect against?

There are many claims covered under a typical Title Insurance Policy. A few are listed below:

a. False impersonation of a Seller or other persons previously in title;

b. Forgery;

c. Improperly executed Deeds;

d. Deeds executed without a required spouse's signature;

e. Fraud;

f. Undisclosed heirs or descendants of former owners of your property;

g. Survey matters; and

h. Liens appearing after closing but prior to recording of instruments.

 

I need to bring $50,000.00 to my closing. What forms of payment are generally acceptable in Illinois?

By Illinois law, any amount $50,000 or more must be wire transferred to the title company before the closing. Any amount below $50,000, Buyer may submit funds by a cashier's check.  You may request more instructions from the individual title company handling your matter.

What costs can I expect to pay at closing?

In Illinois, the Seller generally pays the following fees:

a. Transfer Tax: When a title changes hands from one owner to another, a transfer tax will be imposed locally (by state, city and county).  The responsibility of paying these fees (state and county) many times are paid by the Seller. For cities and local municipalities (counties), there are local transfer charges which vary by amount and are applied to either Buyer or Seller.  Therefore, most of these costs you will pay, but the Buyer may pay a portion of the costs.  The amount depends on where the property is located and on the purchase price. For example, a home located in Chicago, Illinois, and county of Cook, with a purchase price of $200,000, the you, the Seller, will pay for the state transfer tax (about $200), county transfer tax (about $100) and a portion of the City transfer tax (about $600).  The Buyer will pay the other portion of the city transfer tax of about $1,500.

b. Survey.  A Seller is generally required to purchase a current survey prior to closing for all properties other than condominiums. If the property is in a flood zone, a flood certificate will also be required. The price of a survey varies depending on the size and location of the property. The cost of a typical residential survey ranges from $400 to $800.

c. Title Insurance Related Costs. These include the fees to search and examine the title to the property, the cost of the owner’s insurance policy. If it’s a cash deal, the closing fee which is usually paid by the Buyer is split evenly among the Buyer and Seller.

d. Any Costs Associated with Clearing Title Defects. These costs may include obtaining and recording documents such as Affidavits, Satisfactions or Releases.

e. Attorney Fees. If the Seller hires his or her own attorney to review the closing documents, this charge will generally appear on the closing statement. For residential properties, this is usually a flat fee amount and usually ranges anywhere from $500 to $700.

f. Other Fees:  Of course there may be other fees associated with selling your property, such as fees to obtain city zoning and water certificates, condominium association fees for preparing a Paid Assessment Letter or 22.1 Disclosures, a credit for past real estate property tax, real estate broker fees, etc.  Your closing attorney should explain these fees to you in detail prior to or at closing.

What is a 1031 Exchange and under what circumstances may a Seller benefit from one?

A 1031 exchange is an option under the Internal Revenue Code that allows a Seller to use the proceeds from the sale of investment property for the purchase of replacement investment property. As long as the rules are strictly adhered to, the procedure allows a Seller to defer the payment of capital gains taxes.

The Buyer of my property has hired a home inspector and asked me to make numerous repairs to the property. Which repairs am I required to make?

The terms of your contract dictate which repairs are required. Your Contract also specifies a time frame in which you must respond to the Buyer's request. Generally, it’s best to speak with your real estate agent and attorney to help you review the list of items and see what repairs, if any, you should complete, provide the Buyer a closing credit to remedy these items, or simply refuse any requested repairs.

I am purchasing a condominium unit and my real estate agent told me that I have the right to review certain documents. What documents is she referring to?

In Illinois, the Buyer of a condominium unit from a non-developer has the right to review certain documents prior to closing if he or she makes a written request for copies from the Seller. A Buyer has the right to cancel the contract within three (3) business days of receipt if the documents are not acceptable to the Buyer. A Buyer may request more than three business days in the contract.

The documents to be provided are as follows:


a. Articles of Incorporation;
b. Rules and Regulations;
c. Bylaws;
d. Amendments (if any);
e. Declaration of Condominium;
f. Most recent year-end financial statement;
g. Financial Budget for current year and upcoming year; and
h. 22.1 Disclosure Statement.


Any costs of obtaining these copies should be paid by the Seller. If you have not received the copies prior to closing, the closing may be extended for up to 3 days after receipt. A party buying a condominium owned by a developer has fifteen (15) days to cancel the contract instead of three (3). Any right to terminate the contract ends upon closing, even if you have not received the documents or even if you have received an incomplete set of documents.

 

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