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Frequently Asked Questions About Illinois Family Law

Frequently Asked Questions About Illinois Family LawPeople come to us for attorney referrals and legal guidance. Our service is free, confidential and run by Illinois lawyers. The attorneys we recommend aren't free, but they fight for their clients, have a track record of success and are experienced. When we suggest a lawyer for you it is based on who we as attorneys would hire if we were in your shoes.

We also offer free legal guidance. The following are some common questions we have received.

How long will my Illinois divorce take?

The divorce process will take as long as it takes to agree on every issue. Just because you both want the divorce doesn't mean it will be quick, but it can be if you are goal focused and both of you are reasonable. It takes two to tango.

What is the difference between divorce and legal separation?

A divorce is a judicial decree by which a legal marriage is dissolved and the legal duties and obligations owed by one spouse to the other because of their marriage are terminated.

Legal separation, depending on the circumstances, is an agreement or judicial decree by which a husband and wife remain married but no longer live together.

Can my spouse and I use the same attorney for our divorce?

No. Illinois law prohibits one attorney from representing both parties in a divorce case. This is true even if the case is uncontested. You don't both need an attorney, but it's unethical for a lawyer to recommend people who have competing interests.

How long must I have lived in Illinois prior to filing for divorce in an Illinois court?

At least one of the parties to the divorce must have been a resident of Illinois for a minimum of ninety days immediately prior to the filing of the action. For your divorce case to determine custody of your children, the children must have lived in Illinois for at least 6 months before you file for divorce.

Is it true that we have to be separated for six months to get a divorce?

Yes and no. It's true, but it can be waived. If it's not waived then you have a contested divorce which would take longer than six months anyway. FYI, the separation time begins from when you first stop sharing a bed romantically. You can still be living under the same roof and be separated.

What does the "best interest of the child" standard mean?

The "best interest of the child" is the standard for custody determinations. The emphasis in a custody determination is not on which parent is "better" or "worse," but on the child's best interests considering all relevant factors, including but not limited to: the wishes of the child's parent or parents as to custody; the wishes of the child; the mental and physical health of all individuals involved; whether there has been any violence or abuse or threat of such by the child's potential custodian, whether directed against the child or directed against another person.

Does my child have a say in determining what parent has custody?

Children have a say in child custody issues, but their expressed wishes are not controlling. The custody preferences of mature children are given considerable weight, especially when they are based on the child's best interests, such as the desire to remain close to friends or to continue attending the same school.

Can I get the court to modify a child custody order?

In order to successfully modify a child custody order, you must prove that the modification is in the best interest of the child, and you have waited 2 years since the original custody order was issued before seeking the modification. However, if you can prove your child's safety is in danger, you may seek to modify custody earlier.

Can a person other than a parent file a petition for custody in Illinois?

Yes, but only if the child is not in the physical custody of one of his or her parents. Notice of any child custody proceeding must be made to the child's parents, guardian and custodian. The court may permit intervention of other interested parties.

I have full custody of my 2 children and want to move from Illinois to California. Will the court allow me to?

It depends. If the custodial parent wants to move out of state with the child he or she must obtain a court order, called a removal petition. The court considers whether the proposed removal is in the best interest of the child by considering certain factors, such as the motives behind the proposed move. For example, if the custodial parent wants to move across the country just to keep the children away from the non-custodial parent as a form of punishment, the court will most likely deny the petition.

However, if the custodial parent wants to move across the country because he or she has a job lined up, family in the area, can show what school the child will attend in the area, and can demonstrate how the non-custodial parent will still be involved in the decision making process and still have visitation, the court may allow the custodial parent and the child to leave the state.

What is the difference between physical and legal custody?

Physical custody refers to where the child lives. This can be awarded to one parents with the other having visitation rights or both parents according to an agreed upon schedule. Legal custody refers to decisions made regarding the child's lifestyle and can be awarded to one or both parents. A parent may be awarded physical custody and or legal custody over the child.

How is the amount of child support calculated?

Child support is determined by Illinois statute and is calculated by using a certain percentage of the paying spouse's net income, and the amount of children for which he or she is responsible. For example, the following chart represents the minimum of what may be ordered in Illinois:

# of children  Percentage of income 
1 20%
2 28%
3 32%
4 40%
5 45%
6 or more 50%

The guidelines above are applied to each case unless after considering the best interests of the child, the amount determined in the guidelines would be inappropriate. Relevant factors include: the financial resources and needs of the child; the financial resources and needs of the parent with custody; the standard of living the child has previously enjoyed; the educational needs of the child; as well as the financial resources and needs of the non-custodial parent.

When does Illinois child support terminate?

Unless the parties otherwise agree, emancipation of a child terminates the child support obligation, but the termination is not automatic, and the duty to support continues unless and until an order is entered by the court.

In regards to child support, emancipation is when the duty to pay child support concludes. A child is emancipated when they reach age 18 and has completed his or her education, marries, is self-supporting living on his or her own, or joins the military.

Child support may terminate upon a child's death or institutionalization, but a court order is necessary to end or modify support.

The death of a parent does not terminate support. The support obligation may be enforced against the parent's estate, or modified, revoked or commuted to a lump sum payment.

Who has the duty to pay child support?

Both parents have a duty to pay reasonable and necessary support to provide for the reasonable and necessary physical, mental and emotional health needs of the minor children, as well as for adult children who continue to require parental support, and children who are mentally or physically disabled or attending school.

Neglect or refusal to support or maintain child under the age of 18 years, is a Class A misdemeanor and creates civil liability in the non-supporter for the amount of any public assistance provided the spouse or child.

How do I get my child support order modified?

If you are the custodial parent, an order for support is eligible for a modification review every three years, or when there is a significant change in the needs of the child or the non-custodial parent's income and the child is less than 17 years old.

If you are the non-custodial parent whose financial circumstances have significantly changed and you feel that your situation warrants a modification, you can request a modification by contacting the Child Support Customer Service Call Center (1-800-447-4278).

Can a court order an employer to deduct child support from my ex-spouse's salary and pay it directly to me?

Yes, if your ex-spouse is employed at a job. However, if your ex-spouse is self-employed, much of his or her income is in cash tips or payments, or is on a straight commission without a draw, this will not be helpful.

If you have any questions about Illinois family law or would like a referral to a qualified and experienced Illinois family lawyer, please contact us.