Although we make an effort to keep our FAQs up to date, on occasion changes in the law do occur. Please consider these FAQs as a foundation on the law. If you have any questions, please feel free to reach out to us for an online or in person consultation.
- What is the difference between a legal separation and a divorce?
- Are you entitled to seek support from your spouse during the divorce proceedings?
- How does adultery affect child support (allocation of parental responsibility), custody (parenting time), or marital division of assets?
- If I move out of the marital home am I losing any of your rightful percentage of the marital home?
- Do you have to be separated six months before filing for a divorce in Illinois?
- Is Illinois a “no fault” divorce state?
- How is property divided in a divorce in Illinois?
- How is child support determined?
- When can I start dating? My marriage was over long before I filed and I am sick of waiting to restart my life.
- I was never married to my daughter's Father. Can I request the Court to force him to pay for educational costs?
- What is a parenting coordinator?
- My ex-husband was not awarded any visitation of our son, does he still have access to his medical records?
- Child Custody…now known as “Allocation of Parental Responsibility” – since January 1, 2016, there is no such thing as custody.
- What is Nye Law Group, Ltd.
In a legal separation, you remain married and financial matters are resolved as if divorced; the Court may divide property, establish Maintenance (formerly known as Alimony) and Child Suport. In a divorce, the marriage is dissolved along with the division of property, establish Maintenance, and Child Support.
The court may order Maintenance (formerly know and Alimony – to support a spouse who is not currently able to support him/her-self) and Child Support. On occasion the court may order unallocated maintenance and child support which combines Maintenance and Child Support and identifies it in the nature of Maintenance.
Q: How does adultery affect child support (allocation of parental responsibility), custody (parenting time), or marital division of assets?
The courts shall not consider marital conduct when making a determination when it comes to decisions based on property distribution, maintenance, and child support & custody (allocation of parental responsibility and parenting time). However, any negative marital behavior may be considered during divorce settlement negotiations.
Q: If I move out of the marital home am I losing any of your rightful percentage of the marital home?
Moving out of the family home may not necessarily affect your rightful percentage of the marital home since state law requires marital property in a divorce to be divided “equitably” or fairly. However, moving out prior to the divorce may affect other factors in the divorce proceedings if mortgage payments are not paid, or if children are involved. It is best to contact an attorney before deciding to leave the marital home.
Illinois does not require that you be separated before filing for a divorce. The only grounds for divorce in Illinois is irreconcilable differences. A requirement to get divorced in Illinois is that you must live “separate and apart” for six months prior to the final Divorce. Living “separate and apart” does not necessarily mean living in different residences; you can reside in the same home but as if you live “separate and apart”.
Illinois became a pure “no fault” state January 1, 2016. This means that you do not have to prove that your spouse did anything wrong to get divorced. Illinois has decided that all economic elements of a divorce such as property distribution, maintenance, and child parenting allocation must be determined “without regard to marital misconduct”.
In Illinois you can only use the grounds that the marriage is “irretrievably broken,” which means that you do not get along and the marriage cannot be repaired. The legal term is that “irreconcilable differences” have caused the irretrievable breakdown of the marriage and the court determines that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interest of the family.
Illinois is an “equitable distribution” state; this means that the Court is obligated to distribute all marital property in a fair manner.
Equitable does not mean equal, but rather what is fair. The court encourages the parties to reach a settlement on any marital property (martial property includes most assets and debts a couple acquires during marriage. Property is non-marital if a spouse owned it before marriage or acquired it during marriage by gift or inheritance).
If the parties are unable to reach a settlement with regard to the martial property, the court must divide property without regard to marital misconduct.
Beginning July 1, 2017, Illinois law changed from a percentage of net income guideline for child support to the new income share model.
The new guidelines are to apply unless the court determines that a deviation (up or down) is appropriate. In most cases, guideline support applies and will be based off both parents' gross incomes. The gross income is normalized, or adjusted, based on certain credits. After adjusting the gross income, the parents' respective net incomes are calculated using a standardized tax rate, or in certain cases the actual tax rate is applied, and the respective net incomes are then combined. The total support owed by both parents is then based on Illinois Department of Healthcare and Family Services tables. The resulting support amount is then allocated between the parents based on ratios of their combined net income, with certain adjustments based on allocation of time.
If a parent has fewer over nights than the other parent and less than 146 overnights overall, the guideline will apply and the percentage of support attributable to that parent will be paid to the other. If, however, the parent with fewer overnights has more then 146 overnights, then the table sum is multiplied by 1.5 and the amounts of support are distributed by percentage of support attributed to that parent and on percentage of both parents' total earnings and the number of overnights each has.
Q: When can I start dating? My marriage was over long before I filed and I am sick of waiting to restart my life.
There is no legal prohibition of dating during divorce proceedings. However, it may cause the following complications: divorce proceedings being more drawn out; emotional turbulence as a result of the spouse becoming aware that dating has already resumed; concern over joint money being spent on the new relationship; and may also have an effect on parenting time if the children are affected, as the courts rule in the child's best interests.
Generally, it is fine to begin dating and it is suggested that any party choosing to do so should be respectful of the emotional, financial, political, and child related affects dating may cause.
Q: I was never married to my daughter's Father. Can I request the Court to force him to pay for educational costs?
Once an unmarried father becomes the legal father, the child gains the right to financial support from the father, under certain circumstances to the date of birth of the child. Child Support is based upon the needs of the children, not the marital status (or lack thereof) of the parents. Paternity is established by completing a Voluntary Acknowledge of Paternity form, an Administrative Paternity Order being established and entered by HFS's Child Support Services; or an Order of Paternity being established and entered in court judicially.
A parent coordinator helps resolve disputes, manage conflict, and improve communication skills with parents. By reducing the conflict and teaching co-parenting skills and as a result the parenting coordinator may promote better parent/child relationships. A parenting coordinator may meet individually with each parent, together with both parents, or with the parents and children together.
A parenting coordinator may be court appointed either voluntarily/by agreement or if the Court believes that it is in the best interests of the parents.
A parenting coordinator may be appointed when
1.) The parties fail to adequately cooperate and communicate with regard to issues involving their children, or have been unable to implement a parenting plan or parenting schedule
2.) Mediation has not been successful
3.) The appointment of a parenting coordinator is in the best interest of the child or children involved in the proceedings.
Q: My ex-husband was not awarded any visitation of our son, does he still have access to his medical records?
Each parent has right of access to medical, dental, and psychological records (subject to the Mental Health and Developmental Disabilities Confidentiality Act), child care records, and school and extracurricular records, reports and schedules, unless expressly denied by a court order or denied under Section 602.11.
Q: Child Custody…now known as “Allocation of Parental Responsibility” – since January 1, 2016, there is no such thing as custody.
Historically called child custody, the courts changed the terminology from “child custody” to “parental responsibility” – effective January 1, 2016. Prior to this change, the court granted either sole or joint custody, which would determine who would have final decisions regarding health care, education, and religion. If sole custody was granted, the custodial parent would be responsible for all of these decisions; and if joint custody was granted, both parents would share in some or all of these decisions.
Under the new “allocation of parental responsibilities”, the court shall allocate to one, or both of the parents, the significant decision-making responsibility for each significant issue separately and regarding healthcare, education, religion, and extracurricular activities. Unless the parents agree in writing on an allocation of the significant decision-making responsibilities, the court will allocate these rights and obligations based on the child's best interests.
In Illinois, the courts will not consider the conduct of a proposed custodian if that conduct does not affect the best interest of the child, such as infidelity, criminal acts, or other inappropriate conduct in determining the child's best interests in allocating decision-making responsibilities, the court shall consider the following factors pursuant to 750 ILCS 5/602.5. Please contact the Nye Law Group if you need assistance and/or guidance in the allocation of significant decisions regarding your child(ren).
The Law Offices of Nye &Associates, Ltd. meet clients' legal representation, counseling, and training needs with flexibility and ease. With a suburban and downtown Chicago presence, We are ideally situated to serve families and the professionals who help them throughout Cook, Lake, DuPage, and McHenry counties. We deal with people and people problems, family and family problems, and the human services professionals who help them.