Common Answers to Questions from a Divorce Lawyer

Jodee Redmond
James Quigley

James M. Quigley is a partner in the law firm of Beermann Swerdlove LLP in Chicago, Illinois. He receives lots of questions in his practice.

About James

James has been practicing law since 1992. He specializes in the area of family law, and has dealt with matters of child custody and support, paternity, visitation, and pre-and post-nuptial agreements. You can read LoveToKnow's interview with James on the subject of child custody here.

Some Common Questions and Answers

Serving Divorce Papers by Publication

Dear James:How long does a divorce have to be in a publication before a divorce is granted by default? Also, how long does it take to get a divorce in this instance? I live in Illinois and have no knowledge of my wife's address, but do not want to be delayed as a result. I have talked to past neighbors and a couple of mutual friends we had and no one seems to know her whereabouts. Please help!

Answer:

A divorce by Publication will take a minimum of 60 days as the ad has to run for 30 days and then the Respondent has 30 days to appear. If the Respondent fails to appear then they are subject to a default.

Modifying Spousal Maintenance

Dear James:

I divorced one year ago. In my divorce I am to pay $700 per month indefinitely. Im 51 and she's 50. Now I find out that that is no longer the norm. Is that true? Can I have the divorce decree changed so that I only pay for 2-4 years? If so what do I need to do?

Answer:

Permanent maintenance in Illinois is payable until the death of either party or if the payee spouse is found to have cohabited with another on a continuing, conjugal basis. That said, unless agreed to otherwise, maintenance is modifiable upon a showing of a substantial change in circumstances.

Having Sex While Separated

Dear James:My husband and I have been separated for over a year now. We still engage in sexual intercourse, however we want to file for a divorce. Will the intercourse be an issue in regards to the processing times?

Answer:

It could if one party later contested the separation period. However, in Illinois the standard is fairly subjective to the extent that the parties were "not living as husband and wife," then simply having sex is probably not enough to hold up a separation requirement in Illinois.

Do have a divorce-related question for James? If so, please enter your question in the comment box below this article. Please ask questions that are general in nature and note that your question may be edited for content or spelling/grammar before being forwarded to James.

Motor Vehicle Damages and Marital Property

Dear James:

Are damages received as the result of a motor vehicle accident considered marital property?

Answer:

The award of a personal injury lawsuit is considered marital property in the State of Illinois. Once it is classified as marital property then the award is divided equitably, which usually results in the injured person receiving a greater proportion of the award.

Bad Behavior and Division of Property

Dear James:Will my spouse have to account for his gambling losses, approximated $2000 per month for the last 10 years, if I divorce him. We have separated over this problem several times, along with his drinking problem. He feels because he makes the mortgage payment, he should be able to do whatever he wants to with the rest of his money, even though the house needs repairs, etc. He also thinks if we divorce, he is entitled to half of everything, but he has thrown all this money away gambling.

Answer:

Not in Illinois-the statute specifically states that the division of property is "without regard to marital misconduct."

Collecting Back Child Support

Dear James,At the time of my divorce, I did not request any child support at time. I (THE FATHER) got full custody of my 4 yr.old. His mother disappeared out of our life. No contact whatsoever in 14 years & no support ever. My son is 22 yrs. old. I found out what state & an address where she is now. Can I take her back to court and get any kind of back support at all? She left no forwarding address with the courts,so I had no way of contacting her. She is the other half (parent) of my son.If I can't get any kind of BACK support, all one has to do when a divorce is going to happen is disappear until the child reaches 18....RIGHT?

Answer:

I can't imagine a divorce Judgment being entered in Illinois without a support order as part of the Judgment unless the issue of child support was expressly reserved in the Judgment, in which case the parent could possibly go back to revisit the issue of child support. In Illinois support can also be awarded for non-minor children as part of post-high school educational expenses or in cases where there is some special need.

Name of Other Party to Affair on Divorce Papers

Dear James:I just got served with papers and the ground for divorce is that I committed adultery. Is it normal to have the name of the person that I had an affair with written down on the divorce papers? Is it required by the State of Illinois to have her name on the documents before being presented to the court?

Answer:

No. You simply have to allege sufficient facts to state the cause of action.

Parental Kidnapping

Dear James:If my ex doesn't return the children on time, does that constitute parental kidnapping?

Answer:

Parental kidnapping is really a criminal matter. If a person does not return the children on time that likely is not a crime. If it is a violation of a Court order, then in may be punishable by contempt from the Judge who entered the original order.

If an individual in chronically late in returning the child despite a Court order, the Court may restrict that parties' contact with the child or require some type of supervision of the visitation.

Selling the Marital Home

Dear James:

If a married couple owns a house, does it need to be sold immediately or can an order be made that the house be sold at a future date (when the child of the marriage reaches a certain age)? Would any debts incurred during the marriage need to be paid out of the proceeds of the house sale before the proceeds can be divided?

Answer:

In regards to the division of marital property, if the litigants reach an agreement, essentially they can do whatever they want with the handling and disposition of the marital property, so long as it is deemed equitable and not unconscionable by the Court. In the event the litigants agree to sell the home at a future date to coincide with the children reaching a certain age that is certainly permissible provided all of the contingencies are provided for as part of a written agreement.

Similarly, any provisions regarding payment of debts with the proceeds of the sale of a marital home or other property would have to be made part of the written agreement. Typically, if the litigants cannot reach an agreement along these lines, the Court would not impose such contingencies upon litigants at the conclusion of a contested trial. Thus, to have an agreement with a more creative division of assets and debts, both litigants must be in agreement and the agreement must be memorialized in writing and accepted by the Court.

Divorce Now and Decide Other Issues Later On?

Dear James:

Can a judge can grant a divorce and leave issues surrounding custody, spousal maintenance, and division of marital property to be decided at a later time?

Answer:

The only time in which a Court would grant a dissolution of the marriage and leave issues pertaining to custody, maintenance and property to be decided at a later time, is in the specific instance whereby the Petitioner has the Respondent served by publication, as opposed to having the Respondent personally served.

This occurs where an individual has disappeared and the remaining spouse has no knowledge of the whereabouts of the spouse who has disappeared. In such an instance the remaining spouse may serve the other spouse by publication, as provided for in the statute, which would allow the Judge to grant a divorce, but not make any specific findings regarding property and assets.

Under limited circumstances, a Court may have the authority to bifurcate proceedings whereby the Court may enter a Judgment for Dissolution of Marriage where all of the property issues are resolved and leave open only the issues pertaining to custody. Most in Illinois, this is generally disfavored and most Courts will not bifurcate proceedings, but rather will wait to enter a Judgment for Dissolution of Marriage until all matters are resolved.

Child Support Payments When Custodial Parent Moves to Another State

Dear James:If a custodial parent moves to a state where child support payments are lower than the previous state of residence, can the amount payable be reduced based on the change of residence?

Answer:

Typically, the Judgment for Dissolution of Marriage or Parentage Order pursuant to which child support is established, would determine the choice of law governing the support analysis. Therefore, if the decree indicated that the laws of the State of Illinois would govern and an individual moved to a different State, Illinois law would still apply. However, if a custodial parent lawfully moves to another State, that party may move to enroll the Judgment as a foreign decree in the State in which the custodial parent then resides. If not otherwise specified, the laws of the State in which the custodial parent was then residing would apply once the Judgment has been properly enrolled.

It is unlikely that the differences in State laws alone would be allowed as a proper basis to modify support absent other changes in circumstances outside of one parent simply moving to another State.

Dear James:

What are the grounds for having a marriage annulled?

Answer:

An annulment is a religious decree most commonly associated with the Roman Catholic Church. Typically, after an individual is divorced, there are certain grounds promulgated by the Church that will establish whether or not an individual is entitled to an annulment.

Legally, in the State of Illinois, an individual may, under certain circumstances have the marriage declared invalid, that is to say, that the State does not recognize that the marriage ever legally existed. In essence, this is the legal equivalent to a religious annulment.

In the State of Illinois, a marriage may only be declared invalid in the following circumstances:

1. A party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity or because of the influence of alcohol, drugs or other incapacitating substances, or a party was induced into entering into a marriage by force or duress or by fraud involving the essentials of marriage;

2. A party lacks the physical capacity to consummate the marriage by sexual intercourse and at the time the marriage was solemnized the other party did not know of the incapacity;

3. A party was aged 16 or 17 years and did not have the consent of his parents or guardian or judicial approval; or,

4. The marriage is prohibited.

In Illinois, the timeframe for which a declaration of invalidity of marriage may be brought is no later than 90 days after the petitioning party obtained knowledge of the condition described herein above in paragraph 1. No later than one year after the petitioning party obtains knowledge of the condition described in paragraph 2, and for paragraph 3, such a petition must be brought before the underage party reaches the age at which he could have legally married without needing to satisfy the omitted requirement. Finally, a petitioner pursuing a declaration of invalidity of marriage under the 4th ground, that being that the marriage is prohibited, may not exceed 3 years, or may be brought at any time not to exceed three (3) years following the death of the first party to die.

Other than those limited circumstances, once an individual is legally married, the State will legally recognize the marriage. It is likely that a religious annulment does not have the same time constraints, but again,those would be determined by the Church.

Dear James:

Does the U.S. have a national divorce registry where someone can find out whether their spouse has filed for divorce in another state?

Answer:

I am not aware of a National registry, but if the party knows the County in which the spouse resides then the county clerk should have that information available.

Definition of Neglect

Dear James:

If my husband moved out of the family home, is that considered neglect? Can the fact that he left be used against him? We have two children. I am not employed outside the home, and he is in the military.

Answer:

Moving out of the home is not considered "neglect," but may be considered "abandonment" if the individual was pursuing a fault-based divorce. In practical terms it means nothing. However, if the husband later came back and wanted custody of the children, then his absence from the children in leaving the home could be used against him by arguing that his actions were contrary to the best interests of the children.

The key in this situation is to get a Petition for Child Support on file regardless of whether the individual is going to file for divorce or not.

Morality Clause

Dear James:

My divorce decree has a morality clause. I am engaged to be married and my fiance and I would like to move in together. Do we have to be legally married before we can do this without violating the terms of the clause? Is there any kind of a short window where he can move in shortly before the wedding?

Answer:

Generally speaking, a morality clause is not something that is enforceable. Having said that, if the parties agreed to such a clause and was approved by the Court as being a matter related to the best interest of the children, it may be enforceable as it relates to custody or visitation. Without knowing specifically what the clause says it is difficult to answer whether the clause would be enforceable. Again, generally speaking, the Court would not have the authority to prohibit an individual from having her fiancé move in after a divorce.

Social Security Numbers for Children

Dear James:Does the non-costodial parent need the childrens' social security numbers to file for divorce or visitation?

Answer:

No. If a parent needs a social security number of the child they can get it off of a tax return or alternatively, from the office of Social Security Administration. The parent may have to bring a copy of the child's birth certificate, but that should be something he or she could readily obtain.

Inheritance Included in Marital Property?

Dear James: If a person has received an inheritance, is that asset (cash or property) included in marital assets in the event of a divorce?Answer: Generally, property received as an inheritance will be considered as a non-marital asset in the State of Illinois. It is important for the individual receiving the inheritance to keep that property separate and to not commingle that with any marital assets. In the event an inheritance is commingled with marital assets or is used to acquire property during the marriage which is then put into joint tenancy, the Court will then legally presume that the individual receiving the inheritance intended to make it a gift to the marriage. Again, it is imperative that the individual receiving the inheritance keep that inheritance in his or her individual name separate and apart from any marital assets in order to maintain the claim as non-marital property.

Unable to Locate Spouse

Dear James: How can a person start a divorce action of his or her spouse has disappeared? (Can they be served divorce papers by placing a notice in a newspaper?)Answer: If an individual spouse has disappeared, they may still file for divorce just as any individual would file for divorce. However, since the individual's location is not known, service can be accomplished by publication. In Illinois, the daily Law Bulletin is a legal publication which prints legal notices, such as the service of a Petition for Dissolution of Marriage. After a statutory time, assuming the individual who has disappeared does not reappear and avail himself of the Court in the pending proceeding, then the petitioning party may proceed to request a default Judgment. Under the context of a default judgment, the Court can only award a dissolution of marriage, but cannot enter a Judgment regarding any property or custody matters.

Matrimonial Home in One Person's Name

Dear James:For the value of a matrimonial home to be divided in a divorce settlement, do both spouse's names need to appear on the deed?

Answer: In determining whether a home will be divided as part of a divorce settlement, the Court will look first at whether the home was acquired during the course of the marriage. If the home was acquired during the course of the marriage, then the presumption is that the property is marital and should be divided as part of a final settlement. However, as noted with respect to the other non-marital analysis discussed herein above, if the home was acquired by one party in that parties name and was purchased with property that individual had prior to the marriage, then there is the possibility of the home being viewed as a non-marital asset. Again, the general rule is that all property acquired during the marriage is presumed to be marital, regardless of whose name appears on title.

Is an "Emotional Affair" Considered Adultery?

Dear James:

What constitutes adultery under the law? If a person is involved in a close relationship with another person, (an "emotional affair") with no sexual aspect to it, is that considered grounds for divorce?

Answer:

As to the issue of adultery, this is not an area that I would speak to. Adultery is actually still in the books in many states as a crime. I do not know what the criminal elements are for adultery. As it relates to grounds for divorce, I believe that the black letter definition of adultery requires a showing of voluntary sexual intercourse with an individual other than your spouse, so an "emotional affair" would probably not constitute adultery.

Using Funds from Before Marriage to Buy a House

Dear James,If one person takes funds accumulated before the marriage and uses them to purchase a home for the couple, how does this factor in to the division of marital assets when the marriage breaks down?

Answer:

In Illinois, the general rule is that all property acquired during the course of the marriage is presumed to be marital property. One exception to the general presumption is that if one party uses non-marital funds, or separate property, in exchange for separate property acquired during the course of the marriage, then the property will remain non-marital. One of the factors the Court will consider is how the property acquired during the marriage is titled and whether or not any marital funds were commingled with the non-marital funds to acquire the new assets.

Assuming the acquisition of the property during the marriage can be traced back to the asset owned by one of the parties prior to the marriage and also assuming there is no commingling with marital funds and the newly acquired property is titled solely in the name of the party whose non-marital assets were used to acquire the property, then it is likely the property will continue to be viewed as non-marital even though acquired during the marriage. It is important to recognize that if the newly acquired property is placed into joint tenancy or in some other manner indicating joint ownership, the legal presumption in Illinois will then consider the acquisition of the jointly held property to be a gift to the marriage from the contributing parties' non-marital estate.

It is critical in trying to separate marital and non-marital assets for parties to have adequate documentation and clear tracing of the acquisition of assets prior to the marriage in order to make a claim that an asset is non-marital. Important in this analysis is also the issue of intent. When assets are commingled or acquired in joint tenancy or some other joint title, then it is presumed that the contributing party intended to gift his non-marital estate to the marriage. Documentation that reflects property was acquired in separate names and was separate property rebuts the argument that one party intended to gift their non-marital estate to the marriage.

Amount of Child Support Payable if Income Changes

Dear James,My husband pays $1,000.00 per month in child support for his two sons. He was making $60,000.00 per year. His job has gone overseas and now he is on unemployment benefits and is only making $398.00 per week. His ex makes $35,000.00 per year. Will the child support payment go down? He will be starting college soon; there are no jobs in our area without furthering one's education.

Answer:

In the State of Illinois, child support is always modifiable with a substantial change in circumstances. An involuntary loss of employment due to a job position being moved overseas certainly constitutes a substantial change in circumstances. However, if an individual voluntarily leaves his or her employment (for whatever reason) such as a voluntary change in circumstance may not give an individual the right to receive a modification of his or her support obligation.

Where an individual loses his or her job voluntarily and avails himself or herself of unemployment benefits, typically there is a dependent portion paid to the custodial parent from the unemployment benefits. Typically, this will be sufficient as a temporary child support payment, provided that the individual who has suffered the loss of employment immediately petitions the Court for relief. If there is a judgment for support already in place and the obligor does not seek to modify the support due to the change in circumstances, then the judgment will continue to accrue at the amount previously ordered.

In Illinois, the child support obligation for one child is 20% of the obligor's net income from all sources. Where that individual is receiving unemployment benefits, support should rightfully be recalculated upon re-employment, again at the statutory rate of 20% of the net income. It should be noted that from state to state there are different percentages that are applied to the obligor's income, as well as other methodologies used by different states in calculating child support.

Again, the most important thing to remember in a situation where the obligor becomes voluntarily unemployed is to immediately file and present the appropriate pleading before the Court to seek a modification, reduction, and/or abatement of the existing support obligation.

Married Outside the United States

Dear James,

I was married in the Philippines in 1997. We had a daughter together but we separated before I even delivered my daughter because of an affair with another woman that he had. Before I married him I was already a legal resident of united states. When I came back here in US I never changed my status to married. It has been 10 years and my boyfriend and I are planning to get married here in the u.s. Do I still need to divorce him or my marriage is not valid here in US. Please advise. Thanks.

Answer:

Yes. The fact that you did not legally register the marriage in the United States does not mean that United States would not recognize a marriage lawfully consummated in the Philippines in 1997. If you are planning to remarry, in order to protect yourself against a potential legal challenge from your prior husband, you should properly seek a divorce to dissolve your initial marriage. If a person who is legally married in one country got remarried in another country without dissolving the first marriage, the spouse of the first marriage could come in and assert that the second marriage was not valid based upon the existing legal marriage previously established.

I strongly suggest retaining a family law attorney in the jurisdiction in which you reside to handle this matter on your behalf and to ensure that all legal formalities are completed before entering into a new marriage. A divorce can be obtained even if the whereabouts of the former spouse are unknown through use of publication or other means, but every effort should be made to reach your former spouse and seek an amicable dissolution of the prior marriage.

Felony Conviction

Dear James,

If my husband had a felony conviction I was not aware of when we were married how will that play into the divorce and custody?

Answer:

A felony conviction may come into play in a trial under two different scenarios. First, as a matter of evidence, depending on how long ago the spouse received the felony conviction, the conviction may be introduced at trial to attack the credibility of the spouse as a witness. Each State may have its own Rules of Evidence, but even the Federal Rules of Evidence provide for use of felony convictions dating back to a certain period of time. The type of conviction is also relevant as felonies that relate to dishonesty (fraud, perjury, etc.) can always be admitted to challenge the credibility of the witness. Obviously, this type of evidence is detrimental to any individual as a witness, as credibility often times plays a major rule in the Judge's final decision.

Felony Conviction and Custody

Second, with respect to custody, the felony conviction might also be used against a spouse when considering what is in the best interests of the child. This is not to say that an individual with a felony conviction could never get custody of his or her children, but it certainly would be used as a factor in any custody trial. This would be particularly true if the felony conviction were for some type of violent and/or domestic crime. Convictions for other crimes such as narcotics would also be damaging evidence against the parent seeking custody.

Felony Conviction and Financial Settlement

An important thing to note, however, is that in the State of Illinois, a felony conviction would have no direct bearing on the financial settlement of a case. Section 503 of the Illinois Marriage and Dissolution of Marriage Act specifically requires the Court to divide marital property "without regard to marital misconduct" in just proportions… Thus, an individual convicted of a felony, or an individual guilty of domestic violence, or even an individual who has had an adulterous affair will not be punished financially as part of a dissolution proceeding. In other words, one spouse will not receive any more money simply because the other spouse has committed bad or criminal acts.

Fair Alimony and Divorce Settlements

Dear James,Some people have the belief that the law regarding alimony and division of marital property is biased in favor of the woman and that men are not treated fairly. Generally speaking, are women better off after divorce than they were during the marriage in terms of finances?

Answer:

The laws that are written regarding alimony (now known as maintenance) were written to be gender neutral. Accordingly, women should be no better off than men if the laws regarding maintenance are applied appropriately by the judge. The answer to this question is often answered based upon the perspective of the individual paying maintenance versus the individual receiving maintenance, regardless of gender.

In the case where a man is paying maintenance to a woman, it has been my experience in most cases that the woman feels as though she is being judged unfairly in that she is not receiving enough maintenance to support herself, and at the same time, the man feels that the application of maintenance is unfair to him based upon his belief that he is paying too much money. It is often still the case in this day and age that the traditional family dynamic consists of the husband being the wage-earner and the wife being a homemaker. Under that arrangement, the wife frequently has fears and uncertainties about her financial future whereas the husband feels as though it is unfair for him to pay substantial amounts of money to his wife when it is his belief that he is the one out working for the money in the first place.

Illinois Law and Maintenance

In Illinois, the law takes the wife's contribution to the marriage as a homemaker as well as a mother to the parties' children, when applicable. The Court also takes into consideration the ability of the parties to earn income in the future, the needs of the spouse seeking maintenance, as well as the possibility of the wage earner to pay maintenance. The Courts will also take a look at the division of assets as there may be less of a need for maintenance if there are substantial assets to be divided between the parties.

Standard of Living

At the crux of the dilemma between an individual paying maintenance, versus the individual receiving maintenance, is the notion that people can continue to enjoy the same standard of living that they enjoyed during the marriage. In maintenance cases, the household income formally supported one household and one set of expenses, and then after a divorce the same amount of money is apportioned to support two households leaving less money to support each individual household. Individuals who are going through a divorce invariably are going to be forced to scale back on expenses and in most cases the standard of living enjoyed during the marriage is going to be reduced, at least initially.

Another observation that I have experienced regarding maintenance cases suggests that the individual that is the wage earner and/or the individual who earns substantially more than the other spouse is inherently at an advantage as that individual is going to be in a better position to recuperate financially from a divorce as compared to the other individual who has not worked during the marriage or who historically had made substantially less income. Under the structure of a traditional family household where the husband is the wage earner and the wife stayed home, the impact may be seen as being greater upon women in this instance. Again, the bottom line is that divorce usually results in a financial setback for both parties regardless of gender.

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Common Answers to Questions from a Divorce Lawyer