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Divorce FAQs

What is an Uncontested Divorce?

Domestic relations attorneys usually define an uncontested divorce as one where the spouses agree on all major issues prior to hiring the lawyer, including the following:

  • How the property will be divided
  • How the debts will be divided
  • Where the children will live
  • The amount of parenting time each parent will have
  • Who will make major decisions regarding the children
  • How to divide child-related expenses, like uncovered medical bills, extracurricular expenses, school expenses, etc.
  • Who will maintain health insurance for the children;
  • How much child support will be paid;
  • Whether maintenance (aka alimony) will be paid, and if so, how much and for how long.

If the parties have agreed on these and all other major issues, then in an uncontested divorce, the attorneys draft formal settlement agreements that will be signed by the parties and submitted to the court without having to litigate the case. This usually results in the dissolution of marriage case being resolved more quickly and with fewer attorney’s fees and litigation expenses incurred.
Keep in mind, however, that these formal settlement agreements (a Marital Settlement Agreement for financial issues, and an Allocation Judgment, formerly known as a Custody Judgment, for parenting issues) are important documents with long-lasting ramifications for you and your children. Therefore, it is important that these documents are drafted and/or reviewed by an attorney with solid family law experience. It is never a good idea to sign such documents without first consulting with an attorney.

What is the difference between “marital” and “non-marital” property?

In Illinois, the division of property in a divorce is governed by Section 503 of the Illinois Marriage and Dissolution of Marriage Act.  Generally speaking, “marital property” includes assets (and debts) acquired after the date of the marriage, except for property acquired by gift or inheritance. Property acquired before the marriage (or after the marriage, if acquired by gift or inheritance) will normally be treated as “non-marital.”

The reason this distinction between marital and non-marital property is important is that the judge in a divorce case has the duty to divide the marital property in just proportions between the parties. Non-marital property, on the other hand, is not divided between the spouses. Rather, it is assigned to the spouse whose non-marital property it is deemed to be (e.g., a house owned by the husband prior to marriage and still titled solely in the husband’s name, would generally be treated as the husband’s non-marital property and assigned to him in the event of a divorce).

There are exceptions to every rule, and there are hundreds of Illinois cases interpreting Section 503 and the difference between marital and non-marital property, so it is important that you consult with an attorney to determine what you are likely to be entitled to from an asset division perspective if you are getting divorced.

Do I need to live in a separate residence from my spouse for six months to file for divorce.

No. Under Section 401 of the Illinois Marriage and Dissolution of Marriage Act, spouses can get divorced if irreconcilable differences have led to an irretrievable breakdown of the marriage.  There is no requirement that the spouses be living separate and apart for any given period of time. Section 401 does, however, state that if the parties have been living separate and apart for over six months, then the irreconcilable differences requirement will be presumed to have been met.

What if I can’t find my spouse? Can I still get divorced?

Yes. You can still get divorced, even if you don’t know your spouse’s whereabouts. The process includes publishing legal notice in a local newspaper and may also require sending notice to your spouse’s last known address.

The problem is, if you are unable to serve your spouse with a summons so that he or she has actual knowledge that divorce proceedings are occurring, the court will lack personal jurisdiction over him or her. This means that the court will not be able to resolve various property and financial rights between you and your spouse. Issues of maintenance, child support, and division of assets will have to be reserved. This leaves a minefield of legal and financial loose ends that can cause problems down the road.

The best practice is to make every good faith effort to find your spouse and give him or her actual notice of the proceedings, even if it requires the hiring of a private investigator to do some digging into his or her whereabouts.

I have sole custody. Can I move out of state with my child?

Under Illinois Law, moving out of state is called “relocation.” If the child’s primary residence is in Cook County, DuPage County, Kane County, Lake County, McHenry County, or Will County, then you do not need the permission of the other parent to relocate less than 25 miles, even into a different state.  If the child’s primary residence is in Cook County, DuPage County, Kane County, Lake County, McHenry County, or Will County and the intended move is more than 25 miles, then you will need the consent of the other parent, or to file a Petition and obtain a court order allowing the relocation consistent with Illinois Marriage and Dissolution of Marriage Act.

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