Child Support
Residency Requirements and Grounds for Divorce
Either you or your spouse must be an Illinois resident or stationed in the military in the State for 90 days to file for divorce.
Either spouse can get a divorce, also called a "dissolution," simply by stating in divorce papers that "irreconcilable differences" caused the break-up. A two-year separation is also required. Only a six-month separation is required if you and your spouse agree to the divorce in writing (called a "stipulation").
If you haven't been separated for 2 years and don't agree on the divorce, one spouse can seek a divorce based on these grounds:
- Impotence of the other spouse
- Bigamy at the time of the marriage, adultery or desertion
- Your spouse has tried to kill you by poisoning or other malicious means
- Extreme and repeated mental or physical cruelty
- Felony or infamous crime conviction
- Infection of the spouse with a sexually transmitted disease
- Excessive use of addictive drugs for two or more years
Note that grounds such as adultery do not matter in determining property or custody issues.
A divorce case starts when a spouse files a "Petition for Dissolution of Marriage" or "Praecipe for Summons" with the Circuit Court. The other spouse is then served with the paperwork and has time to respond. If the spouses agree on key issues, such as property division and child custody and support issues, the divorce can be finalized without a trial. If you can't agree, the court schedules a hearing on the issues.
Once the divorce complaint is filed, either spouse can ask for temporary assistance from the court in the form of temporary custody and child support orders, and orders to determine who pays community debts on a temporary basis.
A simplified divorce process may be an option for you.
Dividing the Property
In Illinois, assets and debts acquired during your marriage - called "marital property" - will be divided "in just proportions" when you divorce.
But not all property is considered "marital property." "Non-marital property" includes assets you had before marriage, or income from non-marital property.
In deciding how to divide marital property, judges look at factors including:
- Marriage length
- How much and what kind of marital and non-marital property there is
- The financial circumstances and earning potential of each spouse
- The age and health of each spouse
- Contributions in acquiring property
- How each spouse has benefited from the parties' property
- Obligations and rights from prior marriages
- Any agreements spouses made during the marriage
- Tax consequences of property division
Be prepared with information on your property, including when you purchased it, an estimate of value, and details such as account numbers, serial numbers and so forth. You'll be ready to meet with an Illinois divorce lawyer and it can save you a lot of time and money.
Alimony
A court can order alimony, called "maintenance" in Illinois, at its discretion. Factors in deciding on support include:
- Income and property of both parties and their abilities to meet their financial needs
- Marriage length
- Standard of living during the marriage
- Time a spouse needs to retrain or find a suitable job
- Age and physical and emotional condition of the spouse seeking support
- Tax consequences
- A couple's agreement on support
A court can order temporary maintenance while the divorce is pending. Most maintenance is ordered for a specific length of time. You need to show a substantial change of circumstances, such as job loss, when seeking support modification.
Child Custody and Visitation
The court can order sole or joint custody, and looks to the parents to provide an agreement on child custody issues, set out in a parenting plan. The court decides custody when parents can't agree, based on the best interest of the child. Factors in deciding custody issues include:
- The child's relationship with each parent and siblings
- The child's adjustment to home, school and community
- The mental and physical health of everyone involved
- Any physical violence or threats of physical violence, by a child's potential custodian, whether directed against the child or another person if the child saw it
- Abuse in either household
- The willingness and ability of each parent to foster and support the child's relationships with both parents
- Parents' wishes
- Child's wishes
The court won't consider any conduct by either parent that doesn't affect the relationship with the child, and presumes both parents should have maximum involvement in their child's life.
A non-custodial parent is awarded visitation, which can include "electronic visitation" methods, such as e-mail and text messaging.
Once a custody order is signed by the judge and filed with the court clerk, both parents are bound by it. If a parent is denied court-ordered access to a child, seeking court help is an option. Changes to visitation terms, make-up visits and counseling or mediation may be ordered.
Child Support
In Illinois, child support is based on a percentage of the net income of the non-custodial parent and how many children the parent supports. Child support not paid after 30 or more days accrues interest at nine percent per year. A court can set aside a portion of joint or separate assets of the parents in a trust fund for child support if needed.
A Illinois child support order can be modified if there has been a change in circumstances. Examples of this would include:
- A big increase or decrease in either parent's income
- The child spending a lot more time with either parent
- The child being several years older or having special financial needs such as schooling or medical expenses
Questions for Your Attorney