Tag Archives: Illinois divorce laws

IL divorce lawyerSame-sex marriages have been legal for nearly a decade in Illinois, meaning that some of those couples will also face the issues of divorce. Same-sex couples that need to get a divorce will still have to resolve the common issues of divorce, including property division, spousal maintenance, and perhaps even child support. However, same-sex divorces also raise some unique issues that are not present in other cases. An Illinois divorce lawyer can help any person going through a divorce sort through these issues, and give them the best chance of securing a positive outcome in their case.

Are Same-Sex Divorces Legal?

Once same-sex marriages became legal, same-sex divorces also became legal, as these couples have the potential for divorcing just like any other. However, same-sex couples will still have to meet all of the requirements for divorce in the state. Firstly, the couple must be married. Simply living together or being together for a long period of time is not enough to get an official divorce. Individuals that want to file for divorce must also meet the residency requirement, meaning that they must have lived in the state for 90 consecutive days before filing.

What Are the Unique Issues Pertaining to Same-Sex Divorces?

Although same-sex couples will have to resolve many of the terms associated with other divorces, these cases do have some unique issues. One of these is that a couple’s relationship may have begun long before same-sex marriages became legal in the state. They may have acquired property together that would usually be considered marital property, but because the couple was not technically married at the time, it is considered separate property.

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IL divorce lawyerPeople face many complexities when getting a divorce. For most, these challenges include disputes about child custody, property division, and other terms of the divorce. Some people, however, face a much different problem. They want to get a divorce, but they cannot find their spouse. Perhaps their spouse left the city or state, or maybe the couple was only married for a very short time before going their separate ways without officially getting a divorce. In these situations, fortunately, it is still possible to divorce, even if you cannot find your spouse.

Requirements when Serving a Spouse with Divorce Papers

In Illinois, you must serve your spouse with divorce papers in one of two ways. The first is to have the sheriff or a personal process server deliver a copy of the petition for divorce personally to your spouse.

The second option involves the sheriff or personal process server leaving a copy of the petition with someone older than 13 that lives in another home with your spouse. In the second scenario, the sheriff or process server must tell the person they leave the papers with the purpose of the documents, and they must mail a copy of the petition to the same address.

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IL divorce lawyerAfter making the difficult decision to divorce, most people would like the entire process to be over with as soon as possible. Unfortunately, divorce is not an automatic process and in Illinois, there are two different waiting periods couples must be aware of. Individuals that wish to file for divorce must have lived in the state for a certain period of time, and then comply with the mandatory waiting period.

The Residential Requirement

The legal statute governing divorce in Illinois states that the couple must live in the state for 90 days prior to filing. In many cases, this is not an issue but there are instances in which this waiting period may present an issue. For example, if the couple has physically separated and one spouse has been living in Texas for some time, they may want to file in that state instead, particularly if laws on the terms of divorce, such as property division laws, would favor them in a different state. In this situation, it is crucial to speak to a lawyer that can help you determine where the case should be heard.

The Separation Requirement

Historically in Illinois, the couple had to separate for two years before a divorce, if a spouse filed under the no-fault divorce laws at the time. If the filing spouse had alleged fault on the part of their spouse, such as mental cruelty, that waiting period could be reduced to six months. Illinois has not operated under these laws for a long time.

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IL divorce lawyerUnlike child support in Illinois, spousal maintenance is not awarded in every divorce case. A judge will weigh every case on its own merits and determine whether a need for maintenance exists. If you believe that you deserve spousal maintenance as part of your divorce, it is important to review some important factors to determine if you are eligible, and then explicitly ask the judge to consider awarding you spousal maintenance.

Marital Misconduct Is Not Considered

When one spouse’s wrongdoing contributed to the breakdown of the marriage, such as if they had an affair, the other spouse often thinks that is enough to obtain spousal maintenance. This is not true. Spousal maintenance is intended to help you if the divorce will leave you in financial hardship. Illinois law specifically prohibits judges from considering marital misconduct when making determinations about spousal maintenance. Although misconduct may play a part in other aspects of the divorce, such as property division, it is not a consideration in maintenance decisions.

Lower Earning Potential

While marital misconduct is not considered in spousal maintenance decisions, your earning potential is a factor. If, during the marriage, you were unable to reach your full earning potential, a judge will consider that when making maintenance decisions. For example, you may have planned to go to school to secure a better career but put those plans on hold so your spouse could pursue their lucrative career. In this case, a judge will likely determine that you contributed to your spouse’s earning capacity and so, award you spousal maintenance. Although in this scenario maintenance may be only temporary until you can increase your earning potential, it will help with your case.

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IL divorce lawyerNearly everyone has heard of a friend or family member that has gone through a nasty divorce. It can seem as though this is the only way to get a divorce, but that is not true. Uncontested divorces are those in which both parties agree to all terms of the divorce and they simply draft an agreement reflecting those terms. Couples often seek uncontested divorces because they allow the parties going through the process to do so with less stress in a shorter amount of time, and it also allows them to save money during the process.

Willingness by Both Parties

If even one party in a divorce is intent on dragging out the process and making it as difficult as possible, an uncontested divorce is not possible. To get an uncontested divorce, both people must be willing to remain open, reasonable, and objective. It is crucial that differences are put aside, which is often challenging in a situation when emotions run high. Still, this is the most important element when trying for an uncontested divorce.

The Right Attorney

Just because a divorce is uncontested and agreed upon does not mean that spouses cannot use an attorney. In fact, each spouse can and should have separate representation to ensure that their rights are being upheld. However, choosing the right attorney is of paramount importance. Some lawyers are so focused on taking a case to trial that they cannot move from the mindset of a litigator to that of a collaborator.

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