IF A MARRIAGE IS NOT REGISTERED, CAN A COUPLE OBTAIN A DIVORCE?

Occasionally, clients who were married in a private religious ceremony or in a other country come to our office asking for a divorce without ever having registered their marriage in the state or applicable county.  The easy answer is that the courts views are if a couple was never married in their records, a divorce cannot be granted.  However, many times there are still issues that may need to be addressed by the court such as child support and custody, asset/liability division, etc.  To learn more about this unique situation, please feel free to contact one of our experienced family law attorneys.

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HOW DOES THE COURT DETERMINE IF CHILD SUPPORT IS NECESSARY?

Most factors dealing with child support are determined pursuant to Illinois state statute.  However, many clients ask me if they will be eligible to receive child support.  In order to receive support, you must have at least one child born to the parties, not necessarily during the marriage, who is currently under 18 years of age.  Following that, the court will evaluate the amount of time each parent will spend with the child following the divorce, who is the custodial parent, and the expenses paid by each party on behalf of the child, relative to that party's current income.  The court will weigh these factors, and unless the time spent and expenses are close to evenly split or the parties agree, child support would generally be awarded to the custodial parent and the amount will be determined according to state statute.

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IS REAL ESTATE THAT I PURCHASED BEFORE I WAS MARRIED EXEMPT FROM MARITAL PROPERTY?

If you remember from a previous post, property acquired before the marriage is generally non-marital property, while property obtain at any time during the course of the marriage will usually be considered marital property by the court.  In Illinois, there is one exception if the real estate was utilized as a primary marital residence by the couple while they were married, the spouse will have some homestead rights in the property even though it was acquired before the marriage.  Make sure you speak with an experienced divorce attorney regarding all of your property prior to beginning divorce proceedings.

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HOW IS CHILD SUPPORT PAID?

In Illinois, the majority of case where child support will be paid will go through the state disbursement unit.  When a divorce involving child support is finalized, a withholding order will be sent to the payer's employer stating the amount of money that should be withheld from the payer's check every pay period for the purposes of child support.  That money will then pass directly from the employer to the state disbursement unit, which then passes it to the payee.  Obviously, if the payer is unemployed or self-employed, it can become much more difficult to collect if the payer is unwilling to cooperate.

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HOW MUCH DOES A DIVORCE COST?

This is one of the most common questions or firm receives, and unfortunately, there is no easy answer.  Generally, divorces can be accomplished for as little as $1,500 or as much as $150,000.  It really depends on the length and issues of the divorce.  For example, if the two parties are able to agree on all of the outstanding issues, or at least the significant ones (child custody, support, maintenance, asset division, etc.), you could probably finalize the divorce for under $5,000.  However, if the major issues cannot be agreed upon by the parties and require mediation, or even worse, a trial, that is when fees and expenses can rise drastically.  In Illinois, I would estimate the average divorce costs each party $10,000 - $15,000, however, as mentioned earlier, that figure can be reduced by the parties negotiating and reaching agreements on the majority of the outstanding issues.

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WHAT IS A DEFAULT JUDGMENT AND WHY IS IT ENTERED?

In civil litigation, a default judgment is entered when a party fails to respond to a Complaint or Summons.  In a divorce, once a petition is filed, the opposing party must be served and has 28 days to respond and file an Appearance from the date of service.  If the opposing party fails to do that, the petitioning party can file a Motion for Default Judgment, which will typically be granted.  If the opposing party does not show up at the court date for presentment of the motion, the judge will grant the motion and set the case for entry of judgment.  This means that the divorce will be finalized, however, many of the complicated issues such as child custody,  support, and miaintenance may be reserved in the case.  The parties will have to address those outstanding issues at a later date with the court.

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WHEN CAN A MARRIAGE BE ANNULLED?

An annulment is a legal declaration of invalidity of marriage.  In Illinois, a marriage can be annulled for several reasons listed within Illinois statute.  First, a marriage can be annulled if either party lacked the mental or physical capacity to consent to the marriage because of alcohol or drugs, or because either party was pressured into marriage by force, duress, or fraud.  Second, a marriage can be declared invalid if either party lacks the physical capacity to consummate the marriage through sexual intercourse, and the other party was unaware of this.  Third, if a party was not of legal age and without parental permission when he/she got married, this could be grounds for an annullment.  Finally, a marriage is invalid if the marriage is prohibited by law, such as because of bigamy.  If you have any questions regarding an annullment, please feel free to contact our experienced family law attorneys.

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HOW IS HEALTH INSURANCE HANDLED FOLLOWING A DIVORCE?

Believe it or not, health insurance can often be a sticking point in a divorce.  Whether the husband or wife is not currently working or there are minor children involved who need health insurance, it is an inportant aspect to discuss during a divorce proceeding.  Generally, once a judgment to dissolve a marriage is entered, parties cannot be included on their former spouse's insurance plan.  As a result, it usually transfers to COBRA, however, it may be included in the divorce decree that the opposing party may have to continue paying a portion or all of the insurance premium.  In addition, if there are minor children as a result of a dissolved marriage, the court will require the parties to maintain health insurance for them, whether the parties split the cost, or if one parent is earning significantly more income, the court may require that individual to be solely responsible for covering those premiums. 

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IS AN INHERITANCE CONSIDERED MARITAL PROPERTY?

The answer to this question is both simple and complicated.  First of all, by statute, an inheritance is not considered marital property.  However, once the inheritance is commingled with marital property, such as being placed in a joint account, it essentially becomes marital property.  Also, while dividing assets in a divorce, the judge's job is to put each party in a reasonable position moving forward.  Therefore, if one party received a large inheritance while the parties were married, he or she may receive that inheritance back following the divorce, but the judge may order the opposing party to receive a majority of the marital property so that each party has the assets necessary to continue their standard of living after the divorce.  As a result, the entire inheritance may be given back to the heir in accordance with the statute, however, that may adversely affect how the rest of the assets are divided between the parties.

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WHO COMPLETES THE FAFSA WHEN THE PARENTS ARE DIVORCED?

If you are divorced and your child would like to apply for college financial aid, the Free Application for Federal Student Aid (FAFSA) should be completed by the residential or custodial parent, meaning the one with whom the child has resided the most within the last 12 months.  If the divorce is reatively recent or if the time spent with each parent is about equal, then the FAFSA will be completed by the parent who has provided the most financial support.  Finally, if the decision is till close, the financial aid director will be the one who makes the ultimate decision.

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HOW DO I OBTAIN A DIVORCE IF MY SPOUSE HAS MOVED OUT OF THE STATE OR COUNTRY?

More and more often, we are receiving these questions from clients who had their spouse move out of town, usually for work or as part of a separation, and would like to file for a divorce.  Generally, the most complicated aspect is serving the spouse.  A divorce petition can be filed in your county of residence as long as you have resided there more than ninety days.  However, your spouse must be served with the petition, which typically isn't too difficult if he/she resides in the country and you have a relatively current address for them.  However, if your spouse has relocated out of the country or you have lost all contact with him/her, service could become quite a bit more complicated and costly.  Either way, if you are able to serve your spouse, the remainder of the procees should be relatively simple and similar to if that individual has resided in the local county.  If you are currently in this situation, please contact one of our divorce attorneys for a free consultation.

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