FAQs: Your Divorce Questions Answered
These Boyle Feinberg Sharma (BFS) attorneys answer FAQs about their family law firm and the divorce process in Illinois – including child custody, spousal support, and property division.
- Answered By Janet E. Boyle
- Answered By Joy Feinberg
- Answered By Arin R. Fife
- Answered By Madilyn A. Keating
“Can you give me some defining services or moments that set you apart from your competitors?”
I think the most important thing that sets us apart from our competitors is that we are dedicated to getting our clients through the divorce process as easily and as expeditiously as we can. We try to explore all options and get the client to his or her goal quickly and as inexpensively, both emotionally and financially, as possible.
However, if the spouse of our client is interested in litigating and wants to push this matter to the court system, we are excellent in the courtroom; we excel there. My experience as a public defender, having tried both murder and rape cases, has prepared me for anything that can come at us in a courtroom.
“How a mental health professional can make the process easier on the client, tell me a little bit about how you work with them?”
Seeing a mental health professional can’t hurt. The most important thing in a divorce is the emotional damage that it does to each of the spouses and to the whole family. A mental health professional can only help; they can keep you focused on what the goal is, on what is important. They can help you eliminate the background chatter and eliminate the patterns that developed during the relationship.
They can also help you keep up your self-esteem. When you’re going through a divorce you’re at a very low point in your life, whether it’s your fault or the other person’s fault isn’t important; it’s a sense of failure. What you need is to have your self-esteem increased; to have somebody keep reminding you that it’s not your fault, or that it’s not only your fault, can only help.
Hiring a mental health professional can also make your divorce less expensive. Spending time with them going through so many of these emotional issues stops you from calling your divorce lawyer, who probably charges a lot more, and going through the same emotional issues all the time. Having a mental health professional in your corner can only help you through this process.
“How can a lawyer help you divorce a spouse who’s actually very controlling very uncooperative during the process, what do you do then?”
That is such a common scenario. So often I have people coming in to see me and they’re being controlled by their spouse, and the that the control has been going on for just years and years. What you need to do is hire an attorney who becomes the bad guy for you; hire a good, experienced attorney and let that person be the one who talks to your spouse’s attorney, or to your spouse if he refused to hire an attorney, and work out the details.
If you have been controlled over the course of years then your spouse knows the buttons to push, and every time he pushes those buttons you react in a prearranged behavior that has been burned into your psyche. So you need somebody to break you from that habit.
My clients regularly come to me and say “but he says” or “but she says,” and I try to emphasize with them is that we no longer care about what their spouses say. So many spouses have lived their whole married life with what their spouse saying being the way that things must be, and that pattern in particular must be broken. Having an attorney that can stick up for you is the way to expedite that process.
“My spouse and I are not getting along and planning to move out from the home we bought ten years ago. Is moving out a wise thing to do?”
So much of that depends on the exact facts of the case. Moving out can be a good thing. If there’s any domestic violence, do not put yourself in danger; please move out or seek a protective order so that you can be safe in the home. If it is a matter of you not liking the tension in the home you usually aren’t giving anything up by moving out.
However, if there are children you cannot always take them with you if you decide to move out. Your spouse could go back and get a court order requiring the children to be returned to the home. So, so much of it depends on the individual circumstances, but again, if you and the children are in any danger, leave and worry about having to return to the home later.
“What would you say the mistakes are that other lawyers who don’t focus on family law in their practice would make versus someone who does use that as their main practice?”
One of the main pieces of advice that I give anybody who comes in to see me is, whether you hire me or someone else, make sure that you hire somebody who deals exclusively in the area of family law. There are just so many issues to keep up on in the divorce practice; not only do you have custody issues and support issues, you have pensions and the division of those, you’ve got business valuations. There are just so many issues that need to be kept up on, and someone who’s doing something else, such as an estate planning attorney, personal injury attorney, real estate attorney, they’re only well-versed in one or two of those areas. Those of us that do nothing but this all day long, we keep up on all of the law as it relates to anything that may impact our clients.
Additionally, it’s an availability issue; people who practice in other areas are tied up in other trials or before other judges, whereas lawyers who practice exclusively in the family law area, who are in court or in the same courthouse every day, we know all the judges who are going to make the decisions regarding your cases and what their proclivities and tendencies are, and we also know the opposing attorneys – the other attorneys who do this – and all of that can work to your benefit in having somebody who is very experienced within that realm of practice.
“When would you advise clients to try to resolve their divorce-related issues using mediation?”
Mediation is an interesting process in divorce, because there are so many issues in divorce and some of them lend themselves to being mediated and some don’t. Custody issues, visitation issues, and issues regarding the children are very personal and can be mediated very easily because they don’t run on the same hard and fast rules. How you and your spouse want to parent your children can be agreed upon and put into a parenting agreement. Mediation is just a wonderful tool to resolve those kinds of disputes.
When it comes to financial issues, it gets a little bit more complicated. However, mediation can be very, very effective in family law situations when it comes to financial issues, provided that both parties are on the same footing. If both of you have equal knowledge as to your assets and income, if each of you has somewhat the same level of sophistication as to the financial aspects of your life, mediation with an attorney or a former judge who is familiar with your jurisdiction’s divorce laws can be very helpful in handling the financial issues.
It is not helpful at the beginning of a case where one spouse has all of the knowledge and the other spouse doesn’t. I have clients come to me regularly where their spouse is the bully and wants to do mediation, but what they’re really looking for in that case is a forum to continue to beat up on my client and get what they want. So until you’re comfortable that you know what the issues are, or until you participate in a mediation process where you can be represented by your attorney at that time, my advice to people is to not mediate.
“I want custody of our kids and cannot bear the thought of moving them out of the house. If I get custody, will I get to keep the house?”
This is one of the most common questions heading into a divorce. There are many factors which go into formulating an answer, such as the total value of the marital estate, whether you earn an income, and the potential award of child support and/or maintenance (also known as alimony or spousal support). If there are enough marital assets to award you the house and compensate your spouse for their percentage of the value of the marital estate, there is a good chance the court will award you the house if you get custody. The next question is: can you afford to stay in the house? If your income, plus the support award, cannot meet the mortgage and your expenses, this “award” will quickly turn into an anchor around your neck. Your attorney should always help you think one, two, and three steps ahead. You may want the house, but if you cannot afford it, do not waste time that can be spent considering your alternatives.
“I was just served with divorce papers. Can I try to talk my spouse out of it, or do I need to file something right away? What should I do?”
The Petition for Dissolution of Marriage is the opening volley in every divorce case. In some instances, people know it is coming; in others, they are completely blindsided. Either way, you may not know what your next move should be.
You can always talk to your spouse about reconsidering, if they are willing to listen. When a Petition for Dissolution is filed, under Illinois law, you have 30 days to file a written response to the petition, and either file your own appearance in the case or have an attorney file their appearance as your counsel. Doing nothing could ultimately result in you being defaulted from the case and allow your spouse to obtain the divorce completely on their terms. Missing this deadline by a few days will probably not cause irreparable harm to your case, but there is no reason to delay. Begin interviewing attorneys who specialize in family or matrimonial law. And even if you like the first one, make sure you interview multiple attorneys. You may find someone you like better, or someone who makes you think about the process in a different way.
“Now that I am separated, I would like to raise my child in a different religion than what my wife wants. Can I do that?”
Very often, custody is disputed because parents cannot agree on the choice of religion for the child. Under current Illinois custody law, the parent who receives sole custody also controls the child’s religion. When the issue of religion is addressed, most custody judgments state something like the following:
“The child will be raised in the Catholic religion. Each party shall make such arrangements to transport the minor child to and from catechism school. Each party further agrees to participate in the minor child’s religious upbringing as is necessary for the best interests of the minor child.”
Problems arise when the noncustodial parent, or the non-residential parent, decides to take the child to a different religious denomination on weekends when the child is spending time with that parent.
Most recently in Illinois, a three year old named Ela was subjected to numerous cameras and film crews while her parents debated whether or not their daughter, who was enrolled in a Jewish religious school and being raised Jewish, should have been baptized in the Catholic faith by her father – who had not notified his ex-wife, or advised the Priest, that Ela was being raised as a Jew. At issue was also whether or not Ela’s father, during his visitation time, could continue to take her to services in the Catholic church.
Illinois case law and the First Amendment to the U.S. Constitution demonstrate that absent a clear showing that taking a child to a church during the time the child spends with the noncustodial or nonresidential parent is, or would be, harmful to the child, the court is powerless to restrict a parent’s time with his or her child. So even submitting a child to a fiasco of press interference as a case became a cause célèbre, since no harm was evidenced by the child due to the deception.
One older Illinois case discusses harm to a child as the child being subjected to two different religious doctrines. This philosophy appears to be abandoned at present.
To avoid religious disputes, particularly when settling a case of mixed religion parents, more detailed language in the custody agreement will lessen the chance of a dispute arising post-divorce. The details might include:
- Husband/wife shall take the child to religious school/CCD classes/Bar Mitzvah classes, even though said classes occur during his/her parenting time.
- In the event that the child’s Bar Mitzvah/First Communion/Confirmation occurs on husband’s/wife’s weekend, he/she shall switch weekends with the other parent.
- The child shall be permitted to attend extra-curricular activities at husband’s/wife’s temple/mosque/church/synagogue, even if said activities occur during the other parent’s parenting time.
- Both parents agree that the child shall be instructed only in the…faith. Neither parent shall expose the child to any other religious instruction.
- Husband/wife may/may not take the child to religious services of his/her faith.
- Husband/wife may take the child to religious services only for the following events: Wedding of relative, funeral of relative…holiday services.
- The above suggested clauses could be enforced under a custody agreement, even though they could not be ordered by a Judge in a trial. Again, these are difficult issues and as always, it is the children who get caught between warring parents.
“Can I fire my divorce lawyer? How? Under what circumstances?”
Ideally, you and your attorney should work together as a team to arrive at the best possible outcome given your particular circumstances.
When the attorney-client relationship disintegrates, either you or your divorce attorney has the right to fire each other. Legally, a firing or discharge is known as “withdrawing.” Before taking such an action, you should sit down with your divorce attorney and discuss your dissatisfaction or frustration with the case, as you may be able to resolve your differences and continue working together. You should also consider seeking a second opinion from another attorney before you decide to terminate your relationship with your present attorney.
Perhaps your divorce lawyer is giving you sound legal advice and strategies, and the source of your frustration is actually the delays inherent in the legal system or the communication you are receiving from your attorney. Discussing your concerns with your attorney will help clarify if you’re getting “your money’s worth.”
On the other hand, the attorney-client relationship may be damaged beyond repair, and the best possible course of action is for your counsel to withdraw. When this happens, typically your attorney will draft a motion to withdraw, send you a copy of the motion prior to the court date, and present the motion to your assigned judge. Typically, the judge will grant the motion to withdraw and allow you time to find a substitute counsel or file an appearance to represent yourself. In Illinois, no motion by either party can move forward for 21 days after your attorney withdraws. The 21-day period is the time you are given to obtain new counsel.
There are instances in which a judge will not allow your counsel to withdraw, however, such as:
- your case is on the eve of trial;
- your counsel is the umpteenth attorney on the case;
- or the judge perceives the withdrawal as a tactic to prolong litigation.
You should also keep in mind that your lawyer may desire to terminate the attorney-client relationship. A lawyer may become disgruntled for lack of payments; however, the new “level playing field” statute in Illinois may assist the lower-income generating spouse in obtaining legal fees. Attorneys also need their clients to follow through on document production, meet with experts, and to act in accordance with the advice given. Non-cooperation with these requests may result in an attorney terminating a relationship with a client.
If you think you can save money by firing your divorce lawyer and representing yourself, you should be aware that the court will hold you to the same standard as an attorney if you decide to represent yourself. Your ignorance of family law could ultimately harm your case.
If you’re dissatisfied with your attorney, the best course of action is to seek a second opinion. You may determine your retained counsel is adequately representing your case but just not communicating with you frequently or clearly enough, or a second opinion may confirm that you need to hire a new divorce lawyer.
“My career was raising the kids. My attorney mentioned I would be entitled to Social Security benefits via my ex-husband’s record. How does this work? Will I still be able to receive one-half of my ex-spouse’s Social Security benefits if I remarry?”
You may be entitled to a portion of your spouse’s Social Security benefits, including survivor benefits, as long as you have been married for ten years, your work credits do not exceed half of your spouse’s, and you do not remarry. If you are in the process of divorce and are approaching your ten-year marriage date, you may wish to delay the divorce. Once you pass the ten-year mark, you are entitled to these benefits with no negative effect to your spouse. Some states consider this an offset against accumulation during marriage. Ask your lawyer for clarification in your state.
“What is marital (or community) property and what is separate property? What is the difference between the two?”
In Illinois, “marital property” means all property and income acquired by either spouse during the marriage; whereas “non-marital” property is generally any property that was acquired before the marriage, property received as a gift, property that was inherited, or property awarded to one spouse in the divorce. The main difference between marital and non-marital property in Illinois has to do with the division and allocation to the parties upon dissolution. Non-marital property is awarded to each respective spouse. Marital property is equitably divided between the parties after consideration of a number of factors, including the length of the marriage, the age and health of the parties, the future earning capacity of each spouse, and the value of each spouse’s non-marital property. The court’s goal is to leave both parties in an equitable position.