getting a divorce

How Do I Go About Getting a Divorce & Other Questions

If getting a divorce is something you are seriously considering you may find yourself with many questions that need answers. There are a lot of emotions that surface when deciding to get a divorce. Some people elect to handle the divorce themselves and others need more information to help them decide which way to go. As a Chicago divorce lawyer, I field a lot of these types of questions each and every day.

The following are some of the most common questions I answer about getting a divorce:

Top 13 Questions About Getting a Divorce

1. Does it Matter Who Files First in a Divorce?

Some people have been told that the person who files first in a divorce case gets some sort of advantage. It is not true. You can bring the divorce (you would be called the Petitioner) or you can be the person answering the petition for divorce (you would be called the Respondent). The law requires the court to rule on certain aspects of law pursuant to our statutes, so it doesn’t matter if you are the Petitioner or the Respondent.

2. What Procedures are Involved in Getting a Divorce?

The divorce is started by the Petitioner filing a Petition for Dissolution. Once the Petition is filed, the Respondent must receive a copy of it. A lot of times, we’ll mail that Petition to the Respondent and ask that the Petition be given to their lawyer, who will then file an appearance on their behalf. If your spouse will not take the Petition to their lawyer, then we’d need to serve them through the Sheriff. No one likes the Sheriff serving them the paperwork, so we generally try the softer approach by having it mailed first.

Once the appearance has been filed by the other side, we move to the next step in your case. If you have children, that means having the parties attend mediation and a parenting class. Both are required by the court, so it is important to get these requirements over with early in your case. If there are no children, we’ll start with sending out the financial discovery, We will need to ascertain exactly how much money each of you makes so that we can divide up your property, and calculate child support and maintenance.

3. How Much Does It Cost to Get Divorced?

The party filing for divorce – the Petitioner – has to pay the filing fee (unless they can convince the court to waive the fee) and the Respondent has to pay an Appearance fee. Sometimes there is a court reporter to pay, and with that, the court reporter’s transcript of the proceeding. Most of the time, these costs are mandatory when you get a divorce.

Since lawyers in the Domestic Relations field bill by the hour, the divorce costs itself will vary greatly. Are you going to fight over who gets the lawnmower? The china? The pets?

You may elect not to fight over the personal property like the lawnmower and the china, but when it comes to your pets, it is a different story. Pets are like kids for some couples and oftentimes no money is too great to fight for their possession – including beloved pets. But you have to understand that when you fight it will cost money. Uncontested divorces are reasonably priced, but protracted litigation can be very costly.

Asking your lawyer how much it is going to cost is hard to predict. We don’t know what you will be fighting about. The more you can work out ahead of time with your spouse, the more reasonably priced your divorce will be. On the flip side, the more you argue about, the more it will cost you.

4. How Long Will It Take Me to Get a Divorce?

The length of time required to get a divorce is dictated by the fighting and conflict. If we need to have the judge decide numerous issues in your case, then it is going to take longer. If you truly have an uncontested divorce (all the issues have been worked out between the two of you), then we can get you your divorce paperwork in a couple of days. We would make the changes you require and then file your case. Depending on the judge’s calendar, you might get into the courthouse in as quickly as 7 days or 2 weeks. A lot will depend on how busy the judge’s calendar looks.

5. Who Has To Go To Court?

Technically, if there is a signed agreement, only the Petitioner needs to appear in court. If the Respondent hasn’t hired an attorney and is representing herself (“pro se”), then I generally like to have the Respondent in court as well.

Sometimes the judge will change part of the agreement. If a change is made, it still requires both sides to agree to the change. That change will need to be initialed by both parties and if one of them isn’t there, we have to come back on another day. If it is important to get it done quickly, both sides should appear in court. If you cannot get your spouse to the courthouse, it isn’t absolutely necessary, but it does ensure that it will be completed that day.

6. What If My Spouse Won’t Sign the Divorce Paperwork?

The final paperwork for your divorce is called a “Marital Settlement Agreement” or “MSA”. If your spouse won’t resolve your case amicably with an agreement, then you have to go to trial.

7. Can I Have a Collaborative Divorce?

Sure, you can have a collaborative divorce. We have attorneys in our firm that are trained, collaborative lawyers. This type of case is a form of alternative dispute resolution. No one is going to court to seek the judge’s opinion on settlement and there are no hearings.

Collaborative divorce is a divorce done by agreement. Attempts are made to settle the case amicably, and if professionals are needed to help settle it, they are brought into the negotiations. A group of people might be present to resolve the case. There will be at least two attorneys, sometimes a real estate broker who would be involved in selling your house, sometimes a therapist, etc. Professionals are brought in as necessary to resolve each aspect of your case without going to court.

8. We Have Money In a Joint Account and I’m Afraid that He Will Take it All out and I Won’t Have Any Money. What Can I Do?

I hate to see people making a money grab early in their case because it breaks down the trust. The trust level between divorcing couples is already in a precarious spot and running and snatching all the money out of the bank doesn’t help with the trust issues we’ll need in order to get an agreement to settle the case. But if you feel like the money will be spent and you won’t be able to get it back, then it might be a good idea to take half of it and open up your own bank account. Inform the other party after you’ve done it, and don’t spend it frivolously. You’ll need to account for all of it, so don’t take out cash withdrawals or spend it on your boyfriend. The money still belongs to both of you, so make sure that you can tell the court exactly what you did with the money.

9. Can I Prevent a Divorce From Happening?

No. There is nothing you can do to prevent a divorce from happening if your spouse decides he or she wants one. You can talk to your spouse about trying couples therapy and seeing what it would take to save your marriage, but if your spouse is committed to moving forward with a divorce, there is nothing you can do about it.

10. My Husband Had an Affair.  Does that Mean I Will Then Get the Majority of Our Property?

Unfortunately, no. Illinois is a no-fault state and we no longer need grounds for a divorce. Your husband might be a bad person, but that is not going to change the amount of money you’ll both get in the divorce. Property distribution is set forth in a statute for the court to use. The court cannot consider the fault of a person causing or asking for the divorce. There are aspects of our statute that can allow you to get more than 50% of the estate, so you’ll want to go over those factors with your attorney, but being “at fault” is not one of the factors.

11. I’m Afraid I Won’t Have Enough Money t0 Live On After the Divorce. Can You Help?

We will counsel you on this issue and determine if you are entitled to maintenance (used to be called alimony) and/or child support. The laws have changed in the area of maintenance and this is a calculation now, much like the way we calculate child support. Both parties’ incomes are evaluated and a formula determines the amount you would get. This is called “guideline maintenance” or “guideline child support.” The guideline is just that, a guide. The court doesn’t have to adopt that number and your attorney can argue that the guidelines shouldn’t be used. A petition could be filed on your behalf to either seek an upward modification or a downward modification from the guidelines.

12. I Have a Business; Do I Have to Sell It When I Get Divorced?

Probably not. Some businesses have value with or without the owner of the business (like a McDonald’s) and others do not. Some businesses have valuable assets like machinery, and other businesses, like an accountant’s office, may only have computers and desks that make up their “assets.” Every business will have a value, but getting to that business evaluation can be a long process.

An expert is likely needed to evaluate the goodwill of a business and its assets. Once a value is determined, you would have to pay out a value to your spouse to keep the asset. Much like you would if you wanted to keep your house. You’d determine the equity value and pay your spouse out so you could keep that asset.

13. I Cannot Afford to Lose My Children.  What Can I Do to Make Sure I Get Custody of the Kids?

This conversation can entail a lot of information. When we know that you will be involved in a child custody dispute, we sit down with you to determine the best course of action for you.

As a general rule, you should keep communication lines open with your children and your spouse. Keeping the children from him can be detrimental to your case, so in most cases, you want to allow them to continue seeing each other. You’d want to encourage phone calls and Facetime. You need to think of what your children need and meet those needs. Make sure you don’t use the children as pawns in this divorce. If you ensure that you can facilitate a relationship between your children and your spouse, that demonstrates you are looking out for your children’s best interests. You will want to discuss this personally with your attorney.

Seek Advice from an Experienced Divorce Attorney

You are going to have a lot of questions when you decide to seek a divorce. Learn as much as you can, but take your advice from someone who is experienced in this area of law. Discuss your case with a seasoned professional who does divorce law for a living. The more you know, the better the divorce process will go for you. Good luck!

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