The attorneys at Boyle Feinberg, P.C., devote their entire practice to resolving complex matrimonial and family law matters for clients in the Chicagoland area and North Shore communities. We are sensitive to the anxiety our clients face in the process of working through a divorce. We have assembled a list of the top 10 fears of divorce expressed by our clients and some clarifying information that you may find beneficial.
1. My spouse just filed for divorce. Am I at a disadvantage because I didn’t file first?
A: No. Under Illinois law, each spouse is treated equally regardless of which one is listed as the petitioner (the person who filed for divorce) or the respondent. The court does not discriminate against either party based on who filed first.
2. I thought I was entitled to half of the marital property. How is it possible that assets aren’t divided 50/50?
A: Only “community property” states have the statutory requirement of a 50/50 division. As an “equitable distribution” state, Illinois law requires that marital assets are divided equitably. While “equitable” does not necessarily mean 50/50, equal divisions occur in many cases. In the process of dividing marital property, a strategic approach can provide a better long-term result even if the initial division is not equal.
3. I had an affair. Does that hurt my standing in the divorce proceeding?
A: No. Illinois law is clear with regard to marital misconduct. It is not a consideration in the calculation of spousal maintenance, the calculation of child support, determining child custody or the division of marital property. One exception to the misconduct rule involves the spending of marital funds on items not related to the marriage after the relationship has undergone an irretrievable breakdown. This is referred to as dissipation, and each spouse can be held personally accountable for the full amount of such expenditures.
4. What happens if my spouse refuses to pay my attorney fees? I can’t afford a good lawyer on my own.
A: Do not let this be a concern. Illinois law gives the court the authority to help spouses who do not have sufficient finances to hire a qualified attorney. The more financially secure spouse can be ordered to pay his or her spouse’s attorney fees while the divorce is pending. The total amount of money paid by one spouse for the attorney fees of the other is reimbursed as part of the marital property settlement.
5. My spouse wants joint legal custody. Does that mean our children will spend half of their time with each of us? I’m not comfortable with that.
A: No. Joint legal custody refers to a situation where each parent has equal decision-making authority in matters involving the children’s religious upbringing, education and medical care. Legal custody does not impact where the children will live. The parenting-time agreement delineates which parent will care for the children on which days.
6. My spouse is seeking equal parenting time as a way to avoid paying child support. Is that possible?
A: Almost certainly not. There are extremely few situations where there would not be some type of child support order established. If one parent is even marginally more financially secure than the other, the more financially secure parent would likely be required to pay some level of child support as long as the recipient parent is caring for the children at least 50 percent of the time.
7. My spouse is between jobs and has historically been the breadwinner in our family. Am I at risk of not receiving child support?
A: No. If a parent is unemployed, it is expected that he or she will actively seek employment commensurate with his or her abilities. If the parent does not find gainful employment in a timely manner, the court can seize personal assets to be placed in a 503(g) trust and use the proceeds toward his or her child support obligations. In addition, if a parent is underemployed — that is, he or she could be making more money based on his or her capabilities — the court can impute income and order the parent to pay child support based on the amount of money he or she could be making.
8. Are my child support and spousal maintenance payments tax deductible?
A: One yes, one no. Spousal maintenance can be tax deductible to the payor and considered taxable income to the recipient. Child support is not tax deductible for the payor, nor is it considered taxable income to the recipient.
9. Can I modify my divorce agreement if I’m not satisfied with the outcome of the trial?
A: It may be possible in some aspects, but not in all of them. Items that may be modified include child support, spousal maintenance and child custody. A substantial change in circumstances must be shown in order for the court to consider a modification. The property order cannot be modified. However, it may be possible to seek relief from the order if unconscionability, fraud or duress can be shown.
10. My spouse has a strong case for permanent maintenance. Will I have to pay it forever?
A: Probably not. Permanent maintenance is modifiable if there is a substantial change in circumstances. Job loss, an illness or injury that prevents the paying spouse from working or another circumstance that causes a marked reduction in the paying spouse’s income level can all be grounds for a reduction in the amount of spousal maintenance. In addition, permanent maintenance payments end under Illinois law upon the cohabitation, remarriage or death of the recipient spouse.
Contact Our Office To Learn More About Your Rights And Legal Options
Contact us to schedule an initial consultation with an attorney regarding your divorce concerns. You can reach us by phone at 312-376-8860 or 847-394-3940, or via email.