Aurora Divorce Lawyers
Contested Divorce
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.
Call (630) 901-8700 to schedule a consultation and get legal counsel for your divorce matters.
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:
- Joint vs. sole custody of children
- Distribution of marital assets
- Maintenance (alimony)
- Child support
- Distribution of retirement accounts/investment accounts and finally,
- 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) Parenting Time: Parenting Time is the amount of time the residential and non-residential parent will have with the child(ren). The parties can agree on a parenting plan and must submit the an agreed parenting plan or a Court may order the parties to undergo mediation to resolve their differences. If the parties cannot agree on the issue of parenting time, a court may order a parenting schedule for both parties.
(4) Child Support: Child support is set by statute and is based on the income shares model approach which factors in the incomes of both parents and the number of overnight parenting time each parent exercises.
(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. For individuals that earn less than $250,000.00 per year, Maintenance is determined by subtracting 20% of the obligee's gross income from 30% of the obligor's gross income. However, when this amount is added to the obligee's gross income, said amount cannot exceed 40% of the parties' total combined gross income.
- (6) Retirement Accounts: Pursuant to the Illinois compiled statutes, courts may issue a Qualified Illinois Domestic Relations Order (QILDRO) during a divorce proceeding for State employees or a Qualified Domestic Relations Order (QDRO) to divide defined contribution plans. 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. The QDRO provides an exception to the IRS tax code and allows the division of retirement assets without penalty and/or fees.
(7) Distribution of Property: There are an abundance of factors that are considered when determining the distribution of property, post-marriage. Our Aurora divorce lawyers have over two decades of combined legal experience and will be able to help you with all your family law matters. Our in-depth knowledge of divorce proceedings will allow us to answer any and all of your questions regarding the system.
Normally, the distribution of property after a marriage can be a complicated and time-consuming process. However, our attorneys know the ins and outs of the related proceedings, forms, and laws. Our extensive experience allows us to resolve divorce matters with remarkable speed and proficiency. Contact us for more information on the distribution of property after a marriage and other divorce-related matters.
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 lawyer for legal representation in any divorce matter today!
(630) 901-8700
The Law Offices of David Lee is available in Kane, Kendall, Dupage, and Dekalb Counties