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Aurora Contested Divorce Lawyer

A Divorce proceeding will address how your marital property, debt and/or child custody/visitation matters will be apportioned. In an ideal situation, parties in a divorce proceeding will equitably divide their assets and liabilities and will decide issues of child custody/visitation with the best interest of the minor child(ren) in mind. However, if the parties cannot agree as to one or all of these issues, these matters then must be addressed in Court, as a Contested Divorce.

Parties have many options available to them to resolve conflicts and disagreements as to many divorce issues. For example, the parties can elect to negotiate between themselves with the assistance of their attorneys, can voluntarily meet with a certified mediator, or have a hearing before a Judge on most contested issues.

Legal Issues in a Contested Divorce

In divorce proceedings, the most common issues you will have to address are;

(1) Joint vs. Sole custody of children

(2) Distribution of Marital Assets

(3) Maintenance (Alimony)

(4) Child Support

(5) Distribution of retirement accounts/investment accounts and finally,

(6) The grounds in which the marriage is to be dissolved.

Pursuant to 750 ILCS 5/401:

Illinois Courts are required to find "grounds" in order to enter a Judgment of Dissolution of Marriage between married parties. Illinois has both "fault" and "no fault" grounds. For example, if one is alleging "Mental Cruelty" as a grounds for divorce, the Petitioner will be required to demonstrate "Mental Cruelty" on the part of the Respondent. The most common "no fault" ground is called irreconcilable differences. In this instance, parties must live separate and apart for an excess of two years. However, both parties may choose to waive this requirement and can obtain a divorce after living separate and apart for a period of not less than six months. The main issues in a Divorce proceeding, are:

(1) Child Custody: There are typically two types of custody a parent can have in Illinois: Joint Custody and Sole Custody. The term "Custody" refers to the amount of decision making authority a parent has over the child(ren). Thus, a parent with "Sole Custody" will have more decision making authority over the child(ren), whereas parents with "Joint Custody" will have equal decision making authority over the child(ren). Custody is different from Visitation, in that an award of Sole Custody over a child does not necessarily preclude the other parent from visitation. Parties may submit an agreed Child Custody order via a Joint Parenting Agreement, or the Court may, after hearing, award Joint or Sole Custody to either party.

(2) Residential Custody: Residential Custody is typically defined as the primary residence of the child(ren). The primary residence of the child(ren) will typically be with either spouse. Residential Custody does not necessarily preclude the other parent from visitation.

(3) Child Visitation: Visitation is the amount of time the Residential and Non-Residential parent will have with the child(ren). The parties can agree on a visitation schedule and submit the agreement via a Joint Parenting Agreement. If the parties cannot agree on the issue of Visitation, a Court may order a visitation schedule for both parties.

(4) Child Support: Child Support is set by statute and depends on the non-custodial parent's net income and the number of children for which he or she is responsible.

Number of Children --- Percent of Non-Custodial Parent's Net Income

  • 1 -- (20%)
  • 2 -- (28%)
  • 3 -- (32%)
  • 4 -- (40%)
  • 5 -- (45%)
  • 6+ -- (50%)

(5) Maintenance: There are several types of Maintenance a court may order:

(a) Temporary,

(b) Permanent,

(c) Rehabilitative,

(d) Reviewable,

(e) In gross and

(f) Unallocated.

If the parties cannot agree on whether maintenance should be made part of the Marital Settlement Agreement, a Court may, in its discretion, award or deny maintenance.

(6) Determination of Marital Property: In general, any and all property acquired during the course of a marriage is considered marital property and therefore subject to equitable distribution. Conversely, any and all property acquired before the marriage would be considered non-marital property. However, these are general rules, and in some instances, non-marital property can later become marital property, if marital funds are used for the non-marital property during the course of the marriage.

(7) Distribution of Marital Property and/or Marital Home: Marital Property is to be distributed equitably between the parties. Pursuant to the Illinois Marriage and Dissolution of Marriage Act, a Judge shall consider the following factors:

(a) The contribution of each party to the acquisition, preservations, or increase or decrease in value of the marital or non-marital property; including the contribution of a spouse as a homemaker or the family unit.

(b) The dissipation by each party of the marital or non-marital property;

(c) The value of the property assigned to each spouse;

(d) The duration of the marriage;

(e) The relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children;

(f) Any obligations and rights arising from a prior marriage of either party;

(g) Any antenuptial agreement of the parties;

(h) The age, health, stations, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;

(i) The custodial provisions for any children;

(j) Whether the apportionment is in lieu of or in addition to maintenance;

(k) The reasonable opportunity of each spouse for future acquisition of capital assets and income; and

(l) The tax consequences of the property division upon the respective economic circumstances of the parties.

(8) Retirement Accounts: Pursuant to the Illinois Compiled Statutes, courts may issue a Qualified Illinois Domestic Relations Order (QILDRO) during a divorce proceeding. This court order provides that the nonparticipating spouse is named as an "alternate payee." An alternate payee, the spouse whose name is not on a retirement plan, becomes the beneficiary. In certain circumstances, a Court may award all or part of retirement benefits to the alternate payee spouse.

Contested Divorce Proceedings in Illinois

Either party can file motions for Temporary orders while the Divorce matter is pending. Typically, a party will seek temporary and permanent: Child custody, Child visitation, Child support, Maintenance and Contribution to marital expenses or the marital estate. Though there are numerous other issues that can be presented, these are the most common and pressing issues for parties to address immediately.

By filing the appropriate motion with the Court, a party in a Divorce Proceeding can ask the Judge for a hearing to address their particular issue. Though Divorce Judges encourage parties to come to an agreed upon resolution, it is not a requirement. Judges will allow each party to make arguments for their positions and the Judge will make a ruling based on the evidence presented.

Like hearings, Trials are available to parties who cannot agree on one or all of the issues presented in their divorce matter. Trials allow the parties to testify on their own behalf, submit witness testimony and any other relevant and admissible evidence. Once a trial concludes, a Judge will render his/her decision on the various issues presented.

Contact an Aurora Divorce Attorney

Ideally, it would be in the best interest of all parties to come to an agreeable resolution to your various family law issues. However, if you cannot agree with your spouse as to the equitable distribution of assets/liabilities or child custody/visitation, you need an experienced Divorce Attorney who will guide you through the process and will develop a strategy to achieve the best possible results.

Contact an Aurora Divorce lawyer for legal representation in any Divorce matter today!


The Law Offices of David Lee is available in Kane, Kendall, Dupage and Dekalb Counties

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