If you considering getting a divorce or you have a child custody or family law problem, then you most likely have questions and concerns about the legal process and what your legal rights are.
Divorce, child custody, and other family law matters are some of the most difficult times and matters that an individual can face in their life. With that understanding, the Tuffentsamer Law Firm strives to obtain the best possible results for each and every one of our clients in divorce, child custody, and family law matters. The Tuffentsamer Law Firm understands how important it is to obtain fair and equitable terms in your divorce and how important any issue is when it relates to a person’s child and children. This is why meticulous preparation, being aggressive to obtain the best possible results, and communication are the foundations of our practice at the Tuffentsamer Law Firm. At the Tuffentsamer Law Firm, our clients appreciate that they can always call us and talk to a dedicated legal professional who not only understands their situation, but who is also willing to do whatever it takes to obtain the best possible result. Whether it is divorce, child custody, or family law issue such as visitation, child support, paternity, or other child or family related matter you should engage the right representation by a qualified attorney to represent you and to defend your legal rights.
COMMONLY ASKED QUESTIONS
What is the difference between divorce and legal separation in Illinois?
The ending of a marriage in Illinois is referred to as a "dissolution of marriage" which is commonly referred to as a divorce. Dissolution of marriage dissolves the legal bonds of matrimony or marriage that exist between the parties. However, on the other hand a legal separation does not dissolve the bonds of marriage but resolves all other issues such as property division and child custody just as in a divorce or dissolution of marriage. In both divorce and legal separation cases, the parties will resolve the issues of property division, spousal support or alimony, which is now known commonly as maintenance, child custody, child support, and visitation.
What are the grounds for divorce in Illinois?
In Illinois, unless the parties have lived separate and apart for at least two (2) years, or at least six (6) months and both agree to waiver the two (2) year waiting period, the party petitioning the court for divorce must establish a certain “fault” or grounds for a divorce. The most common “fault” grounds for divorce are mental or physical cruelty, adultery, abandonment, drug addiction or alcoholism, conviction of a felony, and polygamy. However, there are several other less common used grounds for divorce as well. Nevertheless, while it might seem as though it would be hard to prove grounds for divorce, most courts recognize the parties’ desire to obtain a divorce and their inability to continue to coexist together as husband and wife. As such, grounds for divorce are rarely challenged and are almost always established by the court.
However, if the parties have lived separate and apart for more than two (2) years, or for six (6) months and both parties agree to waive the two (2) year waiting period, a party may obtain a “no fault” divorce or divorce on the grounds of "irreconcilable differences." Irreconcilable differences simply mean the parties have lived separate and apart for a period of time and the differences between the parties have occurred which have led to an irretrievable breakdown in the marriage. Only one spouse needs to state irreconcilable differences exist if beyond the two (2) year waiting period and the other party will not have any defense to the grounds of irreconcilable differences.
What are the grounds for an annulment?
Obtaining an annulment in Illinois is more difficult than obtaining a divorce as there must be a specific basis proven for an annulment. Some of the common bases for an annulment in Illinois are: the requesting party was a minor at the time of marriage; the other party was still previously married; one of the parties did not have the mental capacity to marry or was of unsound mind throughout the marriage; the marriage was procured by force, fraud, or duress; or one of the parties was unable to consummate the marriage and that incapacity is incurable. Additionally, a party’s misrepresentations about his or her ability to have children or sex can also be grounds for an annulment.
What is marital property?
Generally, any property accumulated during the marriage is considered marital property except property received either as a gift or inheritance. Marital property is considered part of the marital estate and therefore is subject to property division, or splitting between the parties, in a divorce. There are, however, exceptions to this general rule and you should contact a qualified attorney to determine what the ultimate legal status of any property acquired during the marriage is regard as.
What is non-marital property?
As opposed to marital property, non-marital property generally is property which a party acquired before marriage, after marriage, or during marriage by either gift or inheritance. Non-marital property is NOT considered part of the marital estate and therefore is NOT subject to property division, or splitting between the parties, in a divorce. Again there are, however exceptions to this general rule and you should contact a qualified attorney to determine what the ultimate legal status of any property acquired during the marriage is regard as.
How is marital property divided in Illinois?
Unless there is a prenuptial or written agreement between the parties was executed prior to the marriage regarding property division upon divorce, courts will usually make an equitable division of all marital property assets and martial debts. An equitable division does not necessarily mean the division has to be a completely equal division or exactly the same property being given to each party. Instead, it means considering a number of factors, including the financial status and capabilities of the parties, the court should award what it determines as an fair division of all martial assets and debts. There are a number of different ways that courts may divide the marital assets and debts between the parties. Nevertheless, in most cases the parties should anticipate a close division of the martial property that amounts to the same amounts of assets and debt divided between the parties. In fact, determining the division of marital property or the assignment of marital assets and debt is one of the most common places a party can be affected by the type of legal representation they obtain in a divorce matter, which is why it is important to contact a qualified attorney in order to ensure they obtain the most equitable division that they deserve.
What is spousal support, alimony, or maintenance?
What many people have commonly previously referred to as spousal support or alimony is now called maintenance. Under Illinois law, a spouse has a legal duty to support their spouse, which can continue beyond the marriage. Although the award of maintenance has begun to fall out of favor with many courts, there still remain certain situations which still warrant the award of maintenance. Some common situations that can warrant the award of maintenance include when one party has foregone education or work opportunities for a number of years as a stay at home parent, when one party has foregone education or work opportunities to allow the other party to pursue greater education or work opportunities for themselves, when one party has significantly less education, skill, or employment opportunities than the other party, when one party has a certain disability or handicap that prevents them from supporting themselves or maintaining a sufficient lifestyle, and when one party has a significantly higher earning capacity than the other party.
Additionally, maintenance can be awarded in a permanent, temporary or rehabilitative basis, and can also be awarded in either a gradual or lump sum payments. For example, if the in certain situations the court may award a monthly or regular sum paid until the death or remarriage of a party. In other instances, the court may only award it for a short term period or in small lump sum. The court may also award it for a period of time while a party receives additional education or reenters the workforce. Nonetheless, given the potential financial impact of maintenance on both parties, it is important to contact a qualified attorney when an award of maintenance is even in the realm of possibilities as an inequitable award of maintenance award can leave either one party financially strapped or the other in near complete destitute.
What factors are considered in awarding child custody?
In Illinois, courts must ultimately determine what is in the best interests of the child in awarding child custody. However, a court does not determine child custody solely based on a determination on which parent is either "better" or "worse," but rather on what is in the child's best interests considering a number of potential factors, including but not limited to: the wishes of the parties; the wishes of the child; the relationship of the child with each parent and/or other siblings; the child's adjustment to each parent’s current home, school, and community; the mental, physical, and emotional health and capability of the parties and the child; each parent’s ability to provide a nurturing environment in which the child can thrive; any history of physical violence of a parent either directed against the child or another person, the previous roles and attachment that the parents had in the child’s care and day to day life.
What types of custody arrangements are available?
In Illinois, courts can award both joint and sole custody. Under joint custody both parents have input in major decisions concerning the child including the choice of schooling, medical care, religion, and extra-circular activities. Under joint custody the parties are to discuss all child related matters and agree upon the course chosen for the individual child. Joint custody in Illinois, however, should not be confused with an equal splitting of time with the child. Under joint custody, the parties are to make all child related decisions “jointly” together despite the fact the child may reside with one parent more than another or through the week while the other parent gets regular and other visitation with the child. When such an arrangement occurs, the court specifies one parent as the “residential parent” or the parent the child primarily resides with. As such, in Illinois, a parent who is not the residential parent is still obligated to pay child support to the residential parent even though they have “joint custody” of the child.
Sole custody on the other hand means one parent has sole right to control in major decisions concerning the child. The parent without custody will therefore have no input in issues concerning the choice of schooling, medical care, religion, and extra-circular activities. Sole custody is usually reserved for instances where there an evidenced inability of the parties to cooperate in making child related decisions or when such decision making results in evidenced heightened hostility between the parties, or when one of the parties has exhibited an inability or unwillingness to participate in child care and decision making.
Do Illinois courts favor joint custody?
Although Illinois courts do not presume joint custody is in the best interests of the child, most courts will seek to include both parents in the decision making, if possible, in order to ensure the maximum involvement and cooperation of both parents in their child's physical and emotional well-being if it is in the best interests of the child.
Can a father be awarded custody?
While the Illinois law does not presume either parent is more fit than the other parent to have custody of a child, it would not be completely truthful to state there still does not remain, at a minimum, at least some bias favoring a mother in custody matters. Nevertheless, the law still provides both parents have equal rights to custody of their children and given the right circumstances a father can certainly obtain custody of a child. In fact, one of the most important factors is a parent’s involvement and ability to provide for the day-to-day care of the child. Thus, if a father can establish he is the parent primarily responsible for the child’s day-to-day care and he is capable of continuing to do so, the court can certainly award custody to the father.
Can custody or visitation decisions be modified?
Yes, child custody determinations can be modified after two (2) years has expired since the previous entry of the previous child custody order or when a material change of circumstances has occurred. There are numerous ways a material change of circumstances can occur between the parties or with the child that warrant a modification of custody or visitation.
Can a child decide which parent he or she wants to live with?
Yes, however it can depend on the age of the child and whether the other parent is capable of providing care that is consistent with the best interests of a child. The older the child the more influence the child’s wishes will have with the court. Typically, around the age of thirteen (13) years-old is the age when the court gives greater contemplation of a child’s wishes in regards with which parent the child wishes to reside with. Nevertheless, the court must still weigh many other factors in determining whether allowing a change in custody based on a child’s wishes are within the best interests of the child, including the other parent’s current living arrangement and home environment and the other parent’s overall ability to provide a nurturing and caring environment that will continue to allow the child to thrive and develop.
Can a parent move a child out of state?
If there is a custody order concerning the child in this state, a child cannot be removed permanently from the state without permission from the court. If a parent wants to relocate with a child out of state the parent has the burden to prove the removing the child from Illinois is in the best interests of the child. In determining, whether removing the child from Illinois is in the best interest of the child a court will consider the following factors: whether the move will enhance the general quality of life for both the parent and the child; whether the move is simply an effort to frustrate or defeat the other parents rights or visitation with the child; whether the other parent currently actively participates in the child life, whether the visitation rights of the other parent will be seriously adversely affected; and whether a reasonable visitation schedule can be achieved if the move is allowed. If a court has any serious reservations about any of the above issues it can be difficult for a parent to remove the child from this state. It is also very important to note that the burden of proving all of the relevant factors rests solely on the parent seeking removal.
Can a parent move a child far away within the state?
Unless the previous custody order prevents such, Illinois law provides a parent can move anywhere in the state of Illinois without court approval. However, if the move will adversely affect visitation or is not in the best interests or wishes of the child, such a move is certainly grounds for a modification of custody by the other parent.
What are my rights as a parent?
Illinois law presumes parents are fit and the best able to provide care for their children. Additionally, parental rights are considered a fundamental right protected by the Fourteenth Amendment of the United States Constitution.
What are my rights to challenge paternity of a child?
Under Illinois law, there are certain time limitations placed on when an alleged parent can contest paternity of a child. Therefore, it is extremely important you immediately to contest paternity as soon as you discover you are potentially not the biological parent of an alleged child. However, if you are seeking to establish paternity, there typically is not any limitation on when you may bring a paternity claim. In Illinois, a paternity action can be brought by various parties including, a mother, an alleged father, the child, or even the State of Illinois.
Who can Petition for Adoption?
Any person can file a Petition for Adoption of a child. However, Illinois law presumes parents are the most fit and able to provide care for their children. Additionally, parental rights are considered a fundamental right protected by the Fourteenth Amendment. Therefore, consent of the child’s parents or a court’s adjudication terminating parental rights are required for a non-parent to obtain an adoption of a minor child.
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