Divorce Information

The following are some of the terms and legal concepts that come up in many of the Illinois divorce cases handled by Birnbaum, Haddon, Gelfman & Arnoux. This list is for general information purposes only, and is not legal advice. Due to the unique facts of each person’s case and periodic changes in the law, anyone seeking legal advice should discuss their particular circumstances with an attorney licensed in their jurisdiction.

Adoption: A legal process where a state statute allows a child’s legal rights and responsibilities toward a natural (or biological) parent or parents to be terminated and substituted with similar rights and duties toward an adoptive parent or parents. A state adoption statute governs the process because adoption was not recognized at common law.

Alimony (Maintenance): A financial award to a spouse which is much more likely to take place when the divorcing spouses have far different earnings capabilities. Such payments are taxable for the one who receives them and a deductible for the one who pays them. The amount of the maintenance payment can be determined by a court or reached in an out-of-court agreement. Maintenance agreements should take into account situations that may occur in the future, such as the remarriage of the payee or the death of the payor.

Arbitration and Mediation: Forms of alternative dispute resolution where a divorce can be resolved outside of court. In a divorce arbitration, a neutral third party that both sides agree on makes decisions for the couple, rather than a judge. The arbitration is similar to a trial and the arbitrator’s award or decision usually are final. In a divorce mediation, an agreed-upon third party aims to assist the two sides with their negotiations and communications as they reach a decision on their own. Each process has potential benefits and risks compared to a courtroom procedure.

Attorney for the Child: An attorney with a background in family law who represents and advocates for a child’s interests during a divorce, much as lawyers represent each parent’s interests during a divorce proceeding. Occasionally an attorney for the child may testify, but not about privileged communications between the attorney and child. If a child is incapable of expressing a preference about matters such as custody, the lawyer for the child cannot advocate any position.

Bankruptcy and Divorce: The timing and effects of bankruptcy on a divorce can be critical. Sometimes a spouse may want to file for a joint bankruptcy prior to a divorce filing. Bankruptcy can eliminate a sizable amount of the unsecured debt that arose during a marriage. Bankruptcy also can keep a spouse from being saddled with the entire debt acquired over the course of a marriage. Finally, divorce judgments and child support orders may hinge upon the terms of a bankruptcy.

Best Interests of the Child: Child custody is awarded in a divorce based on the best interests of the child, not based on the interests or the needs of either parent. A wide variety of factors may be relevant, including the child’s wishes, the parents’ preferences, the chemistry of the child with parents and siblings, the support of the child’s community, a child’s ability to adjust, the health of the individuals involved, the potential for violence or abuse in a setting, and the likelihood that parental alienation will be avoided.

Child Abuse: Child abuse is the mistreatment or neglect of a child under the age of 18 by a parent, a caretaker, a person living in the home, or a person who works around children. Child abuse comes in a variety of forms, including physical abuse, sexual abuse, and emotional or moral abuse. Accusations of child abuse in a contested divorce always must be handled with extreme care by a lawyer and client.

Child Custody & Visitation: Child custody involves the care, maintenance and control of a child that a court awards to one of the parents — or to both parents in joint custody — during a divorce or separation proceeding. Visitation, which is also known as parenting time, concerns the right of a noncustodial parent to spend time with a child who does not live with him or her. When parents cannot agree to custody and visitation arrangements out of court, a court typically will determine both based on the best interests of the child.

Child Support & Enforcement: Both parents have an obligation to provide financial support for their children. The obligation is not optional, nor can a custodial parent waive it. A state’s statute determines how much child support a non-custodial parent must pay to the custodial parent for the support of the child. Illinois child support law defines the percentage of net income that must be paid, based on the number of children. Adjustments from the state’s guidelines can be made in the best interests of the child. Child support enforcement can be obtained through wage garnishment, seizing assets, the loss of a driver’s license and other methods.

Child’s Representative: Apart from the roles of an attorney for the child and a guardian ad litem, courts also may appoint a child’s representative to serve as an attorney in some well-defined capacity. A motion for good cause must be filed and the reason for appointing the  lawyer must be set forth in specific findings. Although a child’s representative cannot be called as a witness in Illinois or forced to reveal confidential information, a child’s representative can make a recommendation.

Civil Unions: Under the law of Illinois (and some other states), couples may be joined in a civil union, which grants all the same benefits and responsibilities as marriage under state law. Although used most often by same-sex couples, any couple that could be married may also enter into a civil union, though they are not currently recognized by all states or the federal government. Thus couples in a civil union can file a joint state tax return, but must file as individuals for their federal returns.

Client Advocacy: Attorneys have a professional and ethical obligation to be zealous advocates for their client’s interests. This does not mean, however, that we cannot be friendly with opposing counsel. Maintaining good relations with other attorneys practicing in divorce law allows us better represent our clients without escalating an already contentious situation.

Collaborative Law (aka Collaborative Divorce): Collaborative law attempts to change the adversarial and confrontational nature of divorce by having the parties work together to resolve the issues in the divorce. If the parties cannot resolve all the issues, the attorneys in the collaborative law case may not represent their clients in further litigation, so there is every incentive for the attorneys to encourage the parties to reach a settlement, and no incentive for the attorneys to prolong the process.

Contempt: The failure to comply with a court order, or disturbing a court’s proceedings, and thus interfering with the administration of justice. Contempt may be punished with imprisonment. In civil contempt, the person may be released as soon as he or she complies with the court order. In criminal contempt, the person is imprisoned for a fixed period as a punishment for previous actions.

Conversion of Marital Assets: Some assets are not considered marital assets but may later be converted (“transmuted”) into marital assets (which would thus subject that property to being divided in a divorce; see Equitable Distribution). Non-marital assets might include property owned before the marriage, or a gift or inheritance of money which is kept in a separate bank account. The issue of whether a non-marital asset has been converted to a marital asset can be one of the most significant issues in a divorce.

Counseling: Illinois courts may order counseling for children, parents, or both, if they find either parent has violated the divorce’s Joint Parenting Agreement regarding conduct affecting the child. Costs of counseling may be assessed against one or both parties in the divorce. Counseling sessions are confidential, and what is said during counseling may not be used in litigation.

Custody Agreement: A generic term for the agreement by the parties in a divorce to establish either sole or joint custody over any children. It could also refer to a Joint Parenting Agreement, used in joint custody.

Custody Evaluation: Before determining custody of a child in a divorce, a judge may seek evaluations from professionals, including child welfare agencies, or may interview the child personally. In addition, either party in the divorce, or the child’s representative or guardian ad litem, may request an evaluation by a specialist, and even recommend a particular individual to conduct the evaluation.

Custody Judgment: A final ruling from an Illinois court regarding custody of children. Generally it is part of an overall divorce judgment, but it may also be made separately if other issues in the divorce (such as the division of property) have not yet been resolved. Custody judgments must be appealed within 30 days.

Custody Litigation: In some cases, the divorcing couple agrees on a plan for child custody. In cases in which they do not agree, litigating the issue of child custody may be necessary, although it can be expensive. Litigation may involve court proceedings, with testimony from parents and other experts, to determine what is in the best interests of the child. In such cases, it is important to have an attorney with courtroom experience.

Custody Trial: Child custody issues are sometimes part of a larger divorce case, but other times they are split off (“severed”) and handled in their own trial. According to Illinois Supreme Court rules, custody must be resolved within 18 months of the initial filing of divorce. This is done in an effort to promote family stability by getting the children’s living situations settled as quickly as possible, even if other aspects of the divorce have not been resolved.

Dissipation: The use of marital funds or property for a non-marital purpose when the marriage is already broken. One obvious example is taking an expensive vacation with a new boyfriend or girlfriend using money from a joint account shared with the spouse. Often a finding of dissipation depends on when the marriage is said to have undergone an irreconcilable breakdown. In other cases it depends on the amount that was spent, whether the other spouse agreed to the purchase, or whether the dissipating spouse tried to conceal it from the other spouse.

Dissolution of a Civil Union: The process by which a civil union is ended under Illinois law; essentially the same process as a divorce. Note that because federal law does not recognize civil unions, the dissolution of a civil union may have different consequences regarding federal taxes than a traditional divorce.

Distribution: Property is distributed, or divided, during a divorce according to certain principles. Illinois is an equitable distribution state, which means that marital property is distributed equitably. This does not mean it will be divided equally. The distribution is not related to the conduct of the spouse in a marriage. Instead it depends on such factors as the duration of the marriage, the contributions of the parties to the value of the marital or non-marital property, dissipation, the economic circumstances of the spouses, post-nuptial agreements, custodial provisions, present and future earnings for the  divorcing spouses, and several other factors.

Divorce: The legal separation of spouses brought about by a court decree that terminates the marriage. Also referred to as a marital dissolution. Divorce divides the marital assets of the spouses and provides for child custody and child support. Since marriage is defined differently in different jurisdictions, what constitutes a divorce or marital dissolution depends on particular state statutes.

Domestic Partnerships: A concept related to but distinct from civil unions. In some Illinois counties, unmarried couples can enter their relationship as a domestic partnership in a registry. Unless one of the partners happens to be a county employee, no rights will be conferred automatically. By contrast, a civil union is deemed to confer the equivalent rights and responsibilities of a marital relationship. Courts may find, however, that domestic partnerships from certain states are essentially civil unions. The advice of a lawyer licensed in Illinois is critical in evaluating whether a registered out-of-state domestic partnership triggers aspects of the Illinois Religious Freedom and Civil Union Act.

Domestic Relations: Also known as family law. The area of law that includes such family-related and household legal issues as divorce, separation, adoption, child custody and child support. Also, the division of a court that handles family law matters.

Domestic Violence: Whenever a person hits, chokes, kicks, threatens, harasses, or interferes with the personal liberty of another family or household member, the person has committed domestic violence in Illinois. Family or household members are defined in the Domestic Violence Act as people who are related by blood, people who are or once were married, people who share or used to share living space, couples who date or used to date (including same-sex couples), and persons with disabilities and their personal assistants.

Enforcement and Modification: Parties who do not follow a court-ordered divorce settlement agreement may be subject to such enforcement actions as contempt, incarceration, fines, and wage garnishment. However, when circumstances that affect child custody, visitation, child support, maintenance, and the distribution and division of assets change, post-judgement enforcement or modification orders may be required.

Equitable Distribution (aka Equitable Division): Under Illinois law, marital assets must be divided equitably—not necessarily equally. This means that the court may take into account more than just the dollar value of the property in question, and one spouse may be awarded a larger share of the marital assets than the other.

Ex-Parte Actions: Under certain circumstances, a spouse can obtain a divorce even when the other spouse does not participate in the court proceedings. These divorce actions are literally ex parte, or by one party. Such divorces in Illinois and elsewhere generally occur when a spouse is not a resident of a state or when that spouse lives abroad. Courts will consider dissolving the marital relationship without addressing matters such as child custody and child support. To be valid, ex-parte divorce actions generally require service of process.

Grandparent Visitation: Grandparents enjoy child visitation rights in Illinois and other states that have evolved in recent decades. Grandparents can apply for visitation while a marriage dissolution, custody or visitation arrangement is pending. They may be awarded visitation when a parent is deceased or missing for more than three months, when a parent is incarcerated, when a child has been adopted by a relative or stepparent, and under other circumstances. Amendments to the Illinois Marriage and Dissolution of Marriage Act make it clear that grandparent visitation rights do not apply to children younger than age 1 and that petitions for such visitation must be filed in the county where the child resides.

Grounds for Divorce: Illinois is one of the few states that has retained the traditional fault-based notion of grounds for divorce, while adding the no-fault ground referred to as irreconcilable differences. Grounds include impotence at the time of marriage, adultery, bigamy, desertion, drunkenness or drug addiction that endures for two years, extreme and repeated domestic violence, felony conviction, infection of spouse with a communicable venereal disease, and irreconcilable differences. When a spouse contests a fault-based ground or claims the petitioner provoked the action, the petitioner is always free to file on the ground of irreconcilable differences after two years.

Guardian ad Litem: The role of a guardian ad litem, or guardian “for the suit,” is to investigate family living situations to help the court decide what is in the best interest of a child in a domestic relations or other proceeding. GALs interview family members and submit a recommendation. They often are lawyers, but the contents of their interviews are not privileged, and they can be cross-examined by either parent. Judges sometimes direct guardians ad litem to file pleadings.

Hague Convention: A series of international treaties that provide, among other things, for returning a child to the country of habitual residence when the child is wrongfully removed or retained elsewhere. The purpose is to preserve an existing child custody arrangement as it existed before the removal. The Hague Conventions seek to keep a parent from fleeing with a child in search of more sympathetic foreign laws or courts.

Joint Custody: Under Illinois law, the term “joint custody” only means that custody is determined by a Joint Parenting Agreement. It does not necessarily mean equal parenting time.

Joint Parenting Agreement: An agreement, drawn up by the attorneys for both parties in a divorce, that covers how decisions affecting the children will be shared between the parents. The agreement must also state how changes to the agreement can be made and how disputes will be resolved, as well as providing for periodic review of its terms. If the parties cannot agree on the terms of the agreement, the judge may impose a joint parenting order, which effectively does the same things.

Legal Separation: Spouses in Illinois may seek a legal separation when they do not want a divorce but want to live separately with a judge’s order on such matters as child custody, child support, division of property and debt, and maintenance. A legal separation does not terminate a marriage, so spouses cannot remarry. But legal separations may become divorces when court procedures are followed and the requirements of the Illinois Marriage and Dissolution of Marriage Act are met. Spouses may choose separation for a variety of reasons including financial factors, insurance provisions, religious beliefs, or concerns about children’s well-being. Grounds are not required for legal separation.

Litigation: When a divorce or family law matter is not resolved through informal negotiation, divorce mediation, or collaborative law, a litigated divorce arises. In such cases, attorneys for the two spouses negotiate and argue for their client’s desired results before a judge. The court decides any contested matters that the parties are unable to agree on themselves.

Maintenance (Alimony): A financial award to a spouse which is much more likely to take place when the divorcing spouses have far different earnings capabilities. Such payments are taxable for the one who receives them and a deductible for the one who pays them. The amount of the maintenance payment can be determined by a court or reached in an out-of-court agreement. Maintenance agreements should take into account situations that may occur in the future, such as the remarriage of the payee or the death of the payor.

Marital Property & Non-Marital Property: Property (or assets) such as houses, cars, art, appliances, clothing, money, investments, et cetera can be either Marital Property or Non-Marital Property. Property acquired during the marriage is legally presumed to be Marital Property, and this legal presumption can only be overcome by clear and convincing evidence. Marital property must be divided or distributed equitably in a divorce (see Equitable Distribution), whereas non-marital property is not subject to this division and is thus kept solely by one spouse.

Marital Settlement Agreements: When divorcing spouses attempt to amicably resolve certain issues outside of court, they may reach a marital settlement agreement. Courts uphold such agreements except with respect to child-related issues unless the agreement or its terms are deemed to be unconscionable, that is oppressive or one-sided. Marital settlement agreements can cover spousal maintenance or a waiver, the waiver and release of employee benefit plans, dispositions of property and business interests, and ownership and possession of the marital residence, and other matters. Courts will review and approve or reject child support, child custody, and visitation terms in a marital settlement agreement.

Mediation: A mediation process, whether it involves a divorce or some other legal issue, involves an agreed-upon third party who aims to assist the two sides with their negotiations and communications as they reach a decision on their own. Unlike an arbitration, which is another form of alternative dispute resolution, a mediation does not involve a trial-like procedure where a neutral third party makes final decisions in the place of a judge.

Mother’s Rights: Mothers have a variety of family law rights. They can pursue child custody and defend it. As a custodial parent, they have the right to receive child support. They can participate in decisions involving education, health, religion, and other important matters. Unless judged to be unfit, mothers ordinarily share the physical and legal custody of any children. Mothers also have the right to seek paternity testing to determine a child’s biological father and to seek funds from the father to help pay for the child’s medical care and health insurance. In most states, unmarried mothers also automatically have child custody unless a father establishes paternity.

Negotiation: Most divorces are secured through a negotiated settlement and not by going to trial, even though attorneys or mediators may become involved in the process. Like any legal negotiation, the parties must be prepared, have clear goals, know the areas where they will not bend, and have a realistic understanding of how compromise may avoid certain undesirable aspects of a contested divorce. Courts will review and approve or reject child support, child custody, and visitation terms in a marital dissolution agreement.

No-Fault Divorce: A form of divorce where no grounds that involve fault need to be shown or proved. Most states allow marriages to terminate through an allegation of irreconcilable differences between the spouses. In Illinois, irreconcilable differences are considered a no-fault grounds for divorce.

Parental Alienation: A situation where children have unjustified or exaggerated dislike of a parent caused in some part by negative comments, brainwashing, sarcasm or lies from the other parent. A lack of warmth or empathy on the part of the alienated parent also may contribute to the syndrome. Parental alienation can make visitation extraordinarily difficult and unnecessarily contentious. Judges consider the likelihood that parental alienation will be avoided as a factor in determining the best interests of the child.

Parental Rights: All of the rights of a parent or the parents that relate to a child. Also, the rights of the child that relate to the parent or parents. They include such rights as custody-related interests and decision making about various matters. Parental rights can be terminated by a court in the best interests of the child if a parent is judged to be unfit. In an adoption, the parental rights of the birth parents end. This process is known as termination, surrender or relinquishment of parental rights.

Paternity: The state of being a father. Biological mothers have the right to seek paternity testing to determine a child’s biological father and to seek funds from the father to help pay expenses related to the child.

Postnuptial Agreements: A written contract executed after a couple marries or enters a civil union that governs how the couple’s assets, spousal support, and other interests will be handled when a dissolution, legal separation or death occurs. Postnuptial agreements can be included in divorce decrees in Illinois if they meet the requirements of the Illinois Marriage and Dissolution of Marriage Act.

Premarital Agreements (aka Prenuptial or Antenuptial Agreements): A written contract executed before a couple marries or enters a civil union that governs how the couple’s assets, spousal support, and other interests will be handled when a dissolution, legal separation or death occurs. Often spouses consider premarital agreements when they have substantial assets or have been married previously and want that wealth to pass to the children of the prior marriage or civil union. Premarital agreements become effective at the moment of marriage or civil union. They can be included in divorce decrees in Illinois if they meet the requirements of the Illinois Marriage and Dissolution of Marriage Act.

Protection Orders (aka Order of Protection): A civil court order that is intended to provide a person, and her or his family, with protection from a person who is harming or harassing them. Protection orders routinely occur in family law proceedings when a party alleges domestic violence or abuse. An order of protection may be an emergency order, an interim order, or a plenary order. The duration of a protection order depends on which of the three varieties of orders someone requests.

Qualified Domestic Relations Orders (QDRO): Because pensions and other retirement assets may be among the most valuable marital assets, dividing them without negative tax consequences is critical. To do this, divorcing spouses may need a Qualified Domestic Relations Order or QDRO (pronounced “quadro.”) A QDRO forces a fund to split pension or retirement assets in an account between the parties. Ordinarily a Qualified Domestic Relations Order will be prepared after a divorce is final. A QDRO in Illinois is known as a QILDRO, or a Qualified Illinois Domestic Relations Order.

Reconciliation: The voluntary resumption of the marital relationship beyond mere cohabitation and civility, usually indicating that the spouses will make their best efforts to avoid whatever happened to cause the initial separation. Many divorce attorneys look to refer prospective clients to marriage counselors, therapists, clergy and financial advisers when they sense a marriage can be saved. Courts, mediators, and other professionals generally will put a divorce matter on hold if a couple wishes to pursue reconciliation.

Relocation: When a custodial parent wishes to relocate children out of Illinois permanently, the non-custodial parent must be notified about the new address and proposed moving date. A parenting plan must be submitted to the court explaining how visitation would be handled if the judge approves the relocation request. In evaluating whether a move is in the best interests of the child, a court may consider the location of family members, how the move might affect income, the effect on education and extracurricular activities, health care concerns, religious affiliation and many other factors. A parent should be notified of a temporary departure for a trip or vacation, even though it is not considered a relocation.

Sole Custody: When divorcing couples cannot work with each other in the best interests of  their children, a court may decide to avoid a joint custody arrangement. Courts may opt for sole custody especially when they are concerned that violence or never-ending arguments the parents may require ongoing court intervention.

Taxation and Divorce: Many aspects of tax law affect divorcing spouses generally, as well as the specific terms of their divorce settlement agreements. A pending or final divorce may influence who receives a refund, your current filing status, and who can claim a variety of exemptions, credits and deductions. For the details of federal tax law that relate to divorce and separation, view IRS Publication 504.

Tax Issues in Complex Divorce Settlements: Ensuring that a complex divorce settlement takes into account and plans for tax law is and important role of your divorce lawyer. Complex settlements may involve any number of tax considerations, including weighing different options to calculate tax consequences, structuring asset transfers to minimize tax liability, analyzing and protecting business investments and interests, considering tax effects on stock options and various other accounts, restructuring benefits and  credits that a divorce alters, evaluating child support and maintenance provisions, and considering the effects on retirement accounts.

Trial Practice: In Illinois and typically in other states, contested divorces are decided at trial before a judge and not by a jury. When divorcing spouses cannot reach a divorce settlement, the court schedules a trial in which, ordinarily, each party has attorney representation. The two sides tell their stories, call witnesses, and cross-examine the other side’s witnesses. After a trial, a final divorce decree is entered and the losing party is free to appeal.

Uncontested Divorce: When both parties in a divorce agree to the terms and reach a settlement without a judge deciding any of the issues, it is known as an uncontested divorce. Such divorces may not be entirely simple or free of conflict prior to the  court appearance. An uncontested divorce may be more possible when a couple has no children, no concerns about maintenance, no retirement investments, and no real estate or complex property interests.

Valuation of Businesses: During a divorce, courts try to estimate the value of a business or a business interest for the purpose of dividing its value between the divorcing parties. Courts and appraisers determine a fair market value for a business either by looking to its income potential in current dollars, by estimating what the business would likely sell for  in the current market, or by considering the assets of the business.