In ye olden days, divorce petitioners had to prove cruelty, abandonment, adultery, or another kind of marital misconduct by a preponderance of the evidence, or more likely than not. So, if a petitioner had insufficient evidence, the judge could easily deny the request. But Illinois is now a no-fault divorce state. One spouse’s testimony that the marriage has broken down, for whatever reason, is sufficient. The other spouse can try to convince the filing spouse to give the marriage another chance. The non-filing spouse can also delay the process. But once someone files for divorce, the other spouse cannot legally stop the process.
The divorce itself might be a fait accompli, but the issues in a divorce are different. Both spouses have important legal and financial rights in areas like child custody and monetary support. A Chicago family law attorney can shape the orders in these areas in ways that promote your interests. So, although your divorce cannot be denied, at least in most cases, the terms are up in the air, at least for the most part.
There are two overarching principles here. First, the child custody and child visitation provisions must be in the best interests of the children. That is markedly different from the best interests of the parents. Second, there is a presumption that children benefit from meaningful and consistent contact with both parents. There is some dispute as to how much evidence is necessary to refute this presumption.
First, let’s look at best interests. To help determine what is best for the children, Illinois law sets out a number of factors. Some major ones include:
- Status Quo: There is an old saying that the devil you know is better than the devil you don’t know. In this context, if the current informal timeshare arrangement is working, even if the arrangement has some problems, that is better than reinventing the wheel, at least according to most judges.
- Parental Preferences: Whether they know it or not, all parents express preferences in this area. Some parents either desperately want full custody or have stated that they are okay with limited access. Generally, however, the preference is indirect. Parents who showed little interest in soccer games and PTA meetings during the marriage have a very hard time gaining full custody during a divorce.
- Parental Abilities: Some parents have disabilities, such as substance abuse problems or physical limitations, which make it difficult or impossible to be effective full-time parents by themselves. These situations are often temporary, so onset or removal of disability is a common basis for a modification action.
Now, regarding the contact presumption. Current, verified allegations of domestic violence definitely upend this presumption. On the other end of the scale, a parent’s refusal to take children to church might be almost irrelevant. Everything else is somewhere in between.
Financial Support/Property Division
In Illinois, child support and spousal support or maintenance are normally straightforward. A formula that accounts for things like the proportional income of both parents, the parenting timeshare plan, and the children’s special needs usually determines the child support obligation. Alimony is often controlled by the income disparity between the spouses and the length of the marriage.
Property division is different. Illinois law requires property divisions to be equitable. That is not necessarily the same thing as equal. Some factors to consider include the standard of living during the marriage, relative earning potential of each spouse, and noneconomic contributions to the relationship.
Classifying property could be an issue, as well. There is not always a clear distinction between marital and nonmarital property. For example, Husband might use money from his paycheck (marital asset) to make the payments on a car he bought before the marriage (nonmarital asset).
Reach Out to a Compassionate Attorney
A judge cannot deny your divorce, but a judge can materially alter its terms. For a free consultation with an experienced family law attorney in Chicago, contact Andrea Heckman Law, Ltd. We routinely handle matters in Cook County and nearby jurisdictions.