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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