Divorce FAQ's

Under what circumstances can I annul my marriage, rather than get a divorce?

The first question to ask is whether you want a legal annulment or a religious annulment. Legal annulments, called a declaration of invalidity, may be granted only for a few specific reasons: for example, were you intoxicated when you married your spouse such that you were incapable of realizing what you were doing, or was it a “shotgun” wedding and you had no choice but to follow through? What’s more, a request for a legal annulment must be filed within a very short time after your marriage. If you wait too long, the chances of annulment expire.

Religious annulments, on the other hand, have different requirements. Depending on your religion, they may be easier, or harder, to get. To find out the requirements of annulment in your faith, you will need to consult with the your spiritual leader.

If a divorce involves complex issues, can you still use a mediator?

The more complex a divorce, the more appropriate it is for divorce mediation. Divorce mediation is a problem solving process that lends itself to a careful, reasoned opportunity to address complex cases.

Divorce mediation begins with the gathering of information by the parties. This information is then shared and discussed by the parties, and the mediation does not proceed further unless both parties agree that all of the information has been disclosed and that both parties understand it.

After the parties gather the information and review it, the divorce mediator assists the parties in identifying the issues that need to be addressed in the divorce. Next the parties brainstorm resolution options. The mediator then facilitates a discussion of the resolution options to aid the parties in finding a mutually acceptable one. At each step of the process, the parties are free to contact experts, or their own family law attorneys.

Both voluntary and confidential, divorce mediation offers the opportunity for constructive, collaborative problem solving, rather than a competitive destructive battle.

What type of information do I have to disclose to the mediator?

In McHenry County, Illinois, our local rules mandate mediation prior to a court hearing on issues of parental decision making, parenting visitation and issues of removal of the children to another jurisdiction. All information germane to these issues needs to be presented, such as: parenting responsibilities and time allotment; living arrangements; legal and physical custody; insurance; education; and, support.

Financial mediation is not mandatory, but encouraged by many attorneys. If the parties opt for financial mediation the mediator will work with you to determine your income, assets, liabilities, retirement funds, and other financial information required for a legal divorce proceeding, such as: how assets and debts will be apportioned; how the marital home, cars and other personal property will be divided; whether there will be spousal support, in what amount and for how long; who is responsible for medical insurance for the children; and, who has the tax liability for property and assets sold.

As mediation is a private process, most mediators will ask that you sign a confidentiality agreement before commencing the process.

Can one divorce lawyer represent both spouses to save time and money?

The answer is an unqualified “no.” One divorce lawyer cannot represent both parties. There are both practical and ethical considerations that stand in the way.

From a practical standpoint, dual representation can prove disastrous. Instead of working for the best possible result for one client, the lawyer is caught in the middle between competing demands. The attorney would be looking for a middle ground, and would compromise every issue, rather than zealously advocating the interests of his own client. The situation does justice to neither party.

From an ethical point of view, a divorce attorney is required to use his best efforts to promote the interests of his client. If a lawyer is representing both parties, he/she is then trying to advance the interests of both parties, not just his own client. His duty to his own client is then diluted.

While it is true that it would be more costly to hire two divorce lawyers than one, each party will then have a strong advocate to protect their own interests. If there are no complicated issues in the case, the fee for the second attorney should not be substantial. If however, there are disputed issues involving, for example, child custody, maintenance and/or division of assets in the case, separate and independent representation is indispensable.

Can my spouse and I negotiate without our lawyers present, and then have our attorneys look over what we did?

If you have the ability to peacefully discuss the issues in your case then an open dialogue is encouraged. However, it is important that you talk to an attorney prior to discussing the issues with your spouse, so that you understand the parameters of your legal rights. When you and your spouse understand the issues, you can then begin to negotiate. Throughout the process, stay in touch with your attorney to avoid bargaining away rights you may still have. Open communication between spouses lessens the need for adversarial court proceedings. Your divorce can be a stressful time in your life, but keeping an open line of communication with your spouse and limiting confrontation will ease the tension.

Are child support and alimony taxable? Can I structure support payments to my ex to lower my taxes?

Child support and alimony are two different types of payments and are taxed differently. Payments identified as child support or terminating on a contingency relating to a child are considered child support and are not tax deductible by the payor.

When we think of alimony we think of the amount paid by one former spouse to the other former marital partner under a divorce. In general, payments made to an ex spouse are taxable to the recipient and deductible to the payor if the payments qualify as alimony. Not all payments to an ex spouse are considered alimony. To be considered, they must meet the following tests: the payment must be in cash or a cash equivalent; the payment must be made pursuant to a divorce agreement; the parties must reside in separate households when the payment is made; payments to a third party on behalf of the payee must be evidenced in writing; liability for payment must not continue past the death of the payee; and, the divorce decree must not designate non-alimony treatment of the payment.

Having presented these general rules, there are times and methods to change treatment of these payments. If the two spouses are in different tax brackets, it may be beneficial for both spouses to have the child support and alimony treated as alimony. Due to the difference in tax brackets, the ex spouse may receive a greater sum of money with a greater tax benefit to the payor spouse. Obviously, the greater the spread in tax brackets between the two, the better the savings.

This is the primary way to have what would have been considered child support now considered alimony and tax deductible. There are however certain nuances that one needs to watch out for, such as not to have the payments reduced at a time that can be construed as being based on a contingency relating to a child, such as the child turning eighteen.

When does my divorce decree become effective? My fiancée and I are anxious to set a date for our wedding.

The Judgment for Dissolution of Marriage is effective when the judge signs the Judgment. Illinois does not have a waiting period for the Judgment to become effective as some states do. Often when the parties sign a written marital settlement agreement at the end of an uncontested case, the court will enter the Judgment immediately. The judge holds the final decision as to when the Judgment becomes effective, but if the parties ask that it take effect instanter, the judge will do so.

When the parties do not have a written agreement, but can agree on the outstanding issues and ask the court to finalize the matter, the judge will not enter the Judgment until there is a written signed agreement. The parties are bound by their testimonies in court, but the written agreement is often more detailed than what the parties testified at their prove-up. The Judgment is prepared by the parties’ respective attorneys, who will then use the transcript to aid them in preparing the Judgment.

If you and your spouse can not reach an agreement, the judge will conduct a trial and render a decision. The decision will either be given orally and immediately at the end of trial, or more often than not, in cases where complex issues are at stake, a written decision will be prepared by the judge in approximately thirty days, with instructions from the judge for the attorneys to reduce the decision to Judgment form. Again, once the Judgment is signed, you are free to remarry.

I want a divorce, but I am worried about my finances in the current economic climate. Is divorcing in a recession like this a bad idea?

The financial aspect associated with a divorce is complicated. What if your house does not sell? What if your paycheck does not go as far as it used to? Here are some options you may wish to consider based on the following scenarios that most divorce litigants must face:

First, if you own a home, you may need to sell or refinance the house to remove your spouse from the mortgage, but as the housing market is at an all-time low, it is possible financing may be difficult for you even if you have good credit. You can try to refinance the mortgage at a lower interest rate, and if you are denied, contact your lender to discuss your options. If you want to stay in the house, you may wish to contact a divorce financial planner to see if this option is viable. If selling is an option, explore the possibility of a short sale.

Next, if your retirement accounts are now half of what they were, how do you divide the assets fairly? You may try to negotiate a way of holding onto the assets rather than selling them, until the market improves.

If one party has had to take a pay cut or even lost their job, how will you afford potentially two households instead of one? Instead of waiving your right to spousal support altogether, try to negotiate a tiered scale based on future economic improvement. Track all of your spending for at least four months and prioritize your spending. Be certain to not let your health insurance lapse due to poor financial planning.

Be proactive. If you ultimately decide to wait for an economic upturn, take this time to prepare. Start laying the groundwork, so you are in the best financial position when you are ready to take the next step.