Frequently Asked Questions about Divorce

Divorce is emotionally and financially devastating. With 40 – 50 % of all marriages ending in divorce, it is important that everyone has some knowledge about how a divorce works and how to protect oneself during a divorce. I find that most people are scared by those things with which they are unfamiliar. Knowledge is empowerment. The following are several misconceptions of which one should be aware.

MYTH – If I leave my house, I am giving up my right to any share of the equity in the home. In essence, I am abandoning my house.
FACT – As a general rule, anything purchased during the marriage is marital property and anything owned by either party prior to the marriage is non-marital property. The court must equitably allocate property at the time of the divorce regardless of who is currently possessing the item. Therefore, if the home was purchased during the marriage, regardless of title and possession, you are entitled to an equitable share of the same. You cannot abandon the equity in a residence merely by moving out.

MYTH – I stayed home during the course of our marriage to raise my children. Because I contributed less financially to the marriage, I can expect less than 50% of the assets from the marriage.
FACT – The very opposite may be true. Your contribution to the family was the fact that you had a full time job, which was raising your family. At the time of the divorce, the court must consider certain factors including your contribution to raising the children. If you sacrificed your career by staying home, you should be compensated for the same by either receiving a greater share of the marital property (more than 50%) or by your spouse paying maintenance (what is formerly known as alimony.)

MYTH – I purchased a car or a house, or obtained debt, in my name alone during the marriage; therefore, it is mine alone.
FACT – As stated earlier, anything obtained during the marriage is marital property regardless of the name on the title, deed, or bill. Therefore, it must be split equitably between you and your spouse. There are certain exceptions to this rule, however, such as if your spouse acquired debt for something unrelated to the marriage, such as a gift to another person or to fund an addiction such as drugs or gambling.

MYTH – I cannot move from the home with our children.
FACT – While you and your spouse are still married, you each have 100% rights to your children. You may leave the home and retain your children. However, beware that if you leave the home with your children with the intention of putting them in a new school in the middle of the year, there may be issues. If your spouse subsequently files a motion to have the children returned home, that spouse may be successful. The court may find that the best interest of the children is stability, and that by staying in their home and school district, stability will be best achieved.

MYTH – I, or my spouse, cannot leave the state of Illinois with my children for vacation.
FACT – Either spouse may leave the State of Illinois with their children as long as the other person has an address and phone number where they can be reached in an emergency. However, note that neither spouse may permanently remove the minor children from the State of Illinois without consent of the other parent or the court.

MYTH – If my spouse is awarded all the debt from the marriage, the credit card companies cannot try to collect from me.
FACT – The credit card company was not a party to the agreement between you and your spouse, and therefore may attempt to collect from either or both. If the credit card company is successful in having you satisfy a debt that was awarded to your spouse in the divorce decree, you may then sue your ex-spouse to obtain that money you paid out.

Frequently Asked Questions about Parental Allocation of Responsibilities (formerly known as Custody and Visitation)

If you were never married to the parent of your child or children and you and your former significant other have or are currently dissolving your relationship, there is relief that can be obtained by the court. These types of situations can be just as devastating as a divorce, and thus you should have someone guide you through the process.

MYTH - Joint Allocation of Decision Making, formerly known as Joint Custody, means that we equally share parenting time of the children.
FACT  – There are many aspects of a Judgment for Allocation of Decision Making (formerly known as Custody). The primary considerations are determining who makes decisions regarding the children. If you make decisions jointly regarding education, religion, medical and extra-curricular activities then you are awarded Joint Allocation of Decision Making. This has nothing to do with Parenting Time, as that is a separate issue. Just because you have the Joint Allocation of Decision Making does not mean that you have equal parenting time.

MYTH - The other party never did anything for the children and therefore he or she cannot have visitation.
FACT – While there may be an adjustment period and perhaps some sort of counseling between the parent and the child, in most cases parenting time will be ordered between a child and a formerly absent parent.

MYTH– If the father of the child is not listed on the child’s birth certificate he has no rights to the child.
FACT – The fact that one is not listed as the father on the birth certificate neither means that he is not entitled to visitation nor that he does not need to pay child support. If the Father desires parenting time, he may file a Petition for Adjudication of Paternity. If he is then determined to be the father, either by agreement or by a DNA test, he will, in most circumstances, be entitled to parenting time. If the Mother desires child support, she may also file a Petition for Adjudication of Paternity, and then if a man is determined to be the father of the child, she may request child support.

MYTH – There has never been a child support order and therefore, the parent does not have to pay child support until I file requesting the same.
FACT – The Parentage Act of Illinois of 2015 allows the court to award retroactive child support back to the date of the child’s birth, if requested by a party and if certain provisions apply. However, the court will consider several factors, including the length of time between the birth and the request in determining whether or not it is appropriate to order such relief.

MYTH - Voluntary Acknowledgement of Paternity – The father signed a voluntary acknowledgement of paternity but now he says he is not the father and thus, the court will vacate the voluntary acknowledgement of paternity.
FACT – A Voluntary Acknowledgement of Paternity may only be vacated under certain very strict requirements and most people do not meet those requirements. There is a limitation period within which one may file a Motion to Vacate the VAP, so if a father desires to vacate the same he must move quickly.

MYTH– Because my former significant other and I lived as husband and wife without getting married, the court can determine issues of the division of property and debt.
FACT  – The State of Illinois does not acknowledge common law marriage, and there is no provision in the Illinois Parentage Act of 2015 that allows the court to allocate property or debt unrelated to a child.