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Grounds for Divorce in Illinois
If you are seeking a divorce, there are two major routes under Illinois’ marriage dissolution law. When seeking a Judgment for Dissolution of Marriage from a local judge, you must show that you and your spouse have irreconcilable differences, or that you are seeking to dissolve your marriage on the basis of one of the grounds for divorce.
If you are seeking a no-fault divorce, due to irreconcilable differences, you must complete a two-year waiting period before the marriage can be dissolved. During this time, you and your spouse must live apart, and you must prove to the judge at the end of the two years that your differences have caused the irreversible breakdown of your marriage, that any efforts to reconcile have not been successful, and that any future efforts to reconcile would not be practicable or in the family’s best interests. In some cases, the two-year waiting period can be shortened to six months, if both spouses agree and sign a waiver form. In ever rarer cases, the separation requirement can be disposed of altogether. To know whether your circumstances might allow you to bypass the waiting period, you should consult with a local attorney who has experience with divorce cases.
Divorce, Separation, and Living Apart: What’s the Difference?
In Illinois, a divorce marks the legal end of a marriage. Both former spouses are able to marry others. During divorce proceedings, a court can decide on issues such as custody, visitation, and support of children, as well as how to divide marital property and whether one spouse must pay alimony to the other.
On the other hand, a legal separation is not the end of a marriage. Spouses are not free to marry others, but a court can issue an order regarding child custody, visitation, and support, as well as alimony. The marital property of a separated couple cannot be divided by a court, unless both parties agree to have a judge decide how shared property should be distributed. Many couples opt for a legal separation if they know that they cannot live with each other, but are not ready to take the step of filing for divorce.
How Will Filing for Bankruptcy Affect My Spousal Support Payments?
If you are currently making spousal support payments, filing for bankruptcy does not terminate your obligation. Unlike credit card debt and mortgage payments, which may be put on hold or eliminated completely through bankruptcy, your responsibility to provide for your former spouse and your children remains in place regardless of your financial circumstances.
However, you may be able to have your required payment amount reduced to accommodate your altered means. If you need to have your alimony requirement altered, speak with a trusted divorce attorney about how to complete the modification process.
Filing for Bankruptcy with an Alimony Requirement
If your personal debt reaches the point where it is so great that you can not meet your repayment obligations, you may be able to file for bankruptcy. Individuals with outstanding personal debt are eligible to file for two types of bankruptcy: Chapter 7 and Chapter 13.
Choose an Annulment to End Your Invalid Marriage
It is possible for a marriage to be considered invalid under the Illinois Marriage and Dissolution of Marriage Act. When this is the case, a couple may end their marriage through a process known as annulment. Annulments are different from divorces for multiple reasons, the most important of which is that a couple's marriage must somehow violate the laws outlined in the Illinois Marriage and Dissolution of Marriage Act.
It is important to contact an experienced divorce attorney to begin the annulment process. Annulments, like divorces, must go through the court system and be finalized by a judge. The process of completing an annulment is known as nullification.
Annulment vs. Divorce
The fundamental difference between a divorce and an annulment is simple: when a couple gets divorced, they complete the legal process of ending a valid marriage. The couple is eligible to divide their jointly-owned property and the lesser-earning spouse may seek spousal maintenance from his or her former partner. With an annulment, the couple's marriage is legally considered to never have happened. This precludes the couple from dividing their property and seeking spousal maintenance in many cases.
Hidden Assets and the Divorce Process
If you are currently working through the divorce process, you will likely have to work out a fair division of your shared property with your spouse. This is because, under the Illinois Marriage and Dissolution of Marriage Act, Illinois is an equitable distribution state, rather than a community property state. In an equitable distribution state, the court must determine a fair way to divide property between divorcing spouses, rather than a completely equal one.
Property division can only work when the court has a clear picture of the divorcing couple's complete net worth. When an individual hides some or all of his or her assets to avoid sharing them through a divorce, these assets are known as hidden assets. The process through which a spouse may have his or her former partner's hidden assets brought to light is known as discovery.
Establishing Paternity in Illinois
Paternity is defined as the legal relationship between a father and child. When a married woman has a baby, Illinois law automatically considers her husband to be the father of the child. However, if the husband believes that he is not the father of a child, he can sign a Denial of Paternity form.
On the other hand, the father of a child born to an unmarried mother is called an “alleged father,” until his paternity is established. Even if the parents are engaged or living together, a legal process must be followed to make his paternity official.
Establishing paternity provides an important legal foundation for one of the most important relationships in a child’s life. After establishing paternity, the father’s name can be added to his child’s birth certificate. Among other benefits, establishing paternity can protect the father’s rights as a parent, enable the father to access important family medical information, and secure support from the father, in the form of child support, Social Security contributions and inheritance.
Obtaining Guardianship Rights over an Aging Parent
Watching your parents grow old is never easy, but it is especially difficult when they are having trouble caring for themselves. If one of both of your parents are aging, but have refused your help in caring for them, you may want to consider trying to become their guardian.
Becoming the legal guardian of an adult is a lengthy and complex process, because courts take the best interests of the person over whom guardianship is sought very seriously.
Relevant Laws
Under the Illinois Probate Act, disable adults can have guardians appointed for them, following a hearing before a judge. For purposes of the Act, a disabled person is anyone who is “not fully able to manage his person or estate.” A doctor’s assessment is needed in order to declare a person disabled.
Who Has Custody Over Your Child if There is No Court Order?
Usually, when a couple with children divorces, a custody order is issued by a judge as part of their marriage dissolution process. Yet, if you were never married to the father of your child, and you are now separated, it is very likely that there is no formal custody agreement. However, this does not necessarily mean that both parents have joint custody rights. If your ex is trying to take your child from you, you should seek immediate help from an experienced child custody lawyer.
In most cases, if your child has been living with you, you are automatically considered to have legal custody. You do not need a court order saying that you are the custodial parent. Even if your child’s father has had his paternity legally established, either by voluntarily signing an agreement, or by being proven to be the father in court proceedings, this does not mean that he has custody of your child, even jointly.
Garnishment of Wages for Child Support
NOTE: As of July 2017, the law governing child support in Illinois has changed. Please see our Child Support page for more information.
In the state of Illinois, court-ordered child support is usually collected through your employer. The paycheck that your employer gives you will already have the garnishment taken out of it. If you are supporting one child, 20 percent of your pay will be withheld, and if you are supporting two children, 28 percent will go to them. For three or more children, the proportions of your pay that are garnished increases, up to a maximum of 50 percent.
Garnishment for Debts on Top of Child Support
If you have any additional debts, such as medical bills, that a collector is trying to recoup through garnishment, it is unlikely that your employer will be able to further garnish your wages. Even if they have been served with a garnishment order, they must coordinate garnishments, and cannot exceed the cap set by Illinois’ Income Withholding for Support Act. Garnishments cannot exceed 15 percent of your gross pay, or 15 percent of your net pay over $371.25 per week (whichever amount is less). This means that if your take home pay is less than $371.25, your wages cannot be garnished at all for non-child support payments.
Changing Your Visitation Order
There are many reasons why a parent might wish to change the conditions of his or her visitation order. Some of the most common include a change of schedule, preventing the parent from taking advantage of the originally scheduled visitation times; a move to another location, further or closer to the place where the other parent lives; failure of a parent to follow the schedule; or a choice to not visit the child.
Under Illinois law, existing visitation orders can be changed at any time. The primary consideration for a judge, who will review your request for a modification, is whether the change is in the best interests of the child. A child’s best interests can be determined based on the desires of the child, the preferences of one or both parents, the strength of the parent-child relationship, the mental and physical health of the parents and child, and countless other factors.
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