Frequently Asked Questions

Q. If my spouse is guilty of misconduct during my marriage can I be awarded more assets as a punishment for his/her misbehavior?

A. No. Illinois is a no fault divorce state, and assets are to be divided “without regard to marital misconduct”.


Q. My spouse has retirement benefits in his name alone. Is there any way I can be awarded a portion of the benefits if my name is not on the account?

A. Yes. Retirement benefits acquired during the marriage can be divided even if the account is held in only one spouse’s name so long as the judge enters a Qualified Domestic Relations Order that satisfies all necessary requirements.


Q. Is my spouse entitled to receive any property that I owned before my marriage?

A.  No, as long as the property has not been transferred into a form of joint ownership. Property received by gift or inheritance is “non-marital” property and is not to be divided.


Q. Is it true that in the State of Illinois before a divorce can be granted my spouse and I need to be separated for more than 6 months?

A. Yes. However, the term “separation” does not necessarily require that you and your spouse have separate residences. You could be sharing the same residential address and be “separated” in the legal sense.


Q.  If I were to file for divorce can I force my spouse to leave our common residence?

A.  Yes, but only if there is a history of physical or emotional abuse.


Q.  If I am able to have my spouse evicted from our jointly owned home due to physical or emotional abuse, will I receive a greater share of the residence because of his/her behavior?

A. No. If a judge enters an order evicting a spouse from a jointly owned marital residence due to physical or emotional abuse, the equity in the property shall be divided in just proportions without regard to the behavior of the evicted spouse.


Q  Does custody of children always go to the mother?

A.  No. Recently the term “custody” has been removed from the Illinois Marriage and Dissolution of Marriage Act. Now parents are strongly encouraged to work together and agree upon a decision making process (education; medical & religious issues) and parental allocation time between parents (formerly known as “visitation”). If the parents are unable to agree, the court may decide the issues in the best interests of the children.


Q.  Is property always divided equally (50/50 split) when there is a divorce in this state?

A.  No. Illinois is not a community property state where all marital assets must be divided equally. In the state of Illinois, marital property is to be divided “in just proportions” between the spouses based upon multiple factors that are intended to make the division “equitable”, rather than “equal”.


Q.  How is child support determined?

A.  On July 1, 2017, Illinois changed the manner in which child support is calculated. Prior to that date, in most cases, child support was determined by taking a fixed percentage of the non-custodial spouse’s net income, and the income of the other spouse was irrelevant. Now, child support is determined by taking the combined net income of both parents and applying that amount to a table that is used to determine the appropriate amount of “basic needs” for the child or children.


Q. Do I have to divide with my spouse family heirlooms that I inherited from relatives?

A.  No. Inherited property is non-marital and is not to be divided.


Q.  Can I get my spouse to pay my attorneys fees?

A.  It depends. In most cases attorney’s fees are paid from the marital estate for both parties. However, if your spouse has violated a court order, you could be fully reimbursed any fees or cost that were incurred as a result of the violation.

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