Frequently Asked Questions About Divorce
Q: What is a legal divorce?
A: A divorce is a method of terminating a marriage contract between two individuals. From a legal standpoint, your divorce will give each person the legal right to marry someone else, it will legally divide the couple's assets and debts, and determine the care and custody of their children. Each state addresses these issues differently, but there are some relatively uniform standards. Each state does have some type of "no fault" divorce laws that can significantly simplify the divorce process.
Q: What is a no fault divorce?
A: Traditionally, divorce was granted on the basis of some marital misconduct such as adultery or physical abuse. In these cases the "guilty" spouse was punished by getting a smaller share of the couple's property or being denied custody of their children while the "innocent" spouse was rewarded for being faithful to the vows of marriage. In a no fault divorce, however, both parties agree that there is no "fault" involved in the grounds for divorce. In fact, any misconduct is irrelevant to the divorce proceedings. A marriage can be terminated simply because the couple agrees that it is no longer salvageable.
Please note that states' laws differ on the issue of fault or no fault divorce. Among the 50 states, 15 provide no fault divorce as their residents' only choice; residents of other states may pursue fault based or no fault divorce.
Q: What is a fault-based divorce?
A: A "fault" divorce is one in which one party blames the other for the failure of the marriage by citing a legal wrong. Grounds for fault can include adultery, physical or mental cruelty, desertion, alcohol or drug abuse, insanity, impotence or infecting the other spouse with a venereal disease.
As noted above, please consider state guidelines regarding the types of divorce permitted in an individual state.
Lake County Divorce Attorneys
At the law office of David Weinsteing, our divorce lawyers provide legal advice and representation throughout the divorce process and continue with you through any post decree modifications. We regularly represent clients throughout Lake County, Illinois including the cities of Waukegan, Grayslake, Gurnee, Deerfield, Wauconda, Libertyville, and Round Lake in divorce cases.
When most people begin thinking about a divorce they think about breaking the legal bond with their spouse. While a divorce involving a married couple with no assets and no children is relatively simple, it is also unusual. Our divorce attorneys have the experience necessary to handle the more intractable issues involved in the dissolution of marriage such as child support, child custody, visitation, division of marital assets, and spousal maintenance. Contact Our Lake County Divorce Attorneys
If you are considering divorce, please contact David Weinstein. We are committed to aggressively protecting the rights and interests of our clients so they can move forward with their lives.
Divorce Overview - The Basics
Contemplating divorce is always difficult. Whether you are sure you want to end your marriage or are still considering your options, it helps to learn the basics of divorce law and process. Should you conclude that divorce is necessary, it is very important that you seek the assistance of an experienced family law attorney. Involving a knowledgeable family law attorney as soon as possible in the divorce process is one of the best ways to preserve your own long-term financial and emotional health.
Grounds for Divorce / Dissolution of Marriage
A divorce is a judicial decree by which a legal marriage is dissolved and the legal duties and obligations owed by one spouse to the other because of their marriage are terminated. From a legal standpoint, a divorce / dissolution of marriage will give each person the legal right to marry someone else, divide the couple's assets and debts, and determine the future care and custody of their children. While each state has individual statutes that address these issues differently, the basic principles the states follow when considering requests for divorce are relatively uniform.
In a majority of the states, there is at least one form of "no fault" divorce. No fault divorce is a marital termination proceeding where the divorce is granted without requiring either party to show fault. In no fault divorce, either party may obtain a divorce, even if the other spouse does not consent to the divorce.
Other states require that you give a legal reason in order to get a divorce. These are called fault-based divorces. Each state will have a statute that specifically defines the different types of fault that must be proved in order to establish the requested marital termination.
In some states, both fault and no-fault divorce grounds are available. An experienced attorney can help you determine if you should pursue a divorce / dissolution of marriage. Typically, if the couple cannot reach a satisfactory settlement about the division of property, the award of support, or child custody, the court will consider the circumstances of the parties and the best interests of the children when deciding these issues.
Before a divorce may be granted, there are usually five basic issues that must be resolved. They are:
- Alimony or spousal support
- Property division, and, if there are children:
- Child support
If there is disagreement on any of the basic issues, a contested divorce exists. When a divorce is contested, the couple may proceed through all phases of litigation including trial before a family court judge. The couple may also voluntarily seek alternative dispute resolution methods like mediation or collaborative divorce or they may be ordered by the court to do so. It is important to consult with an attorney before deciding which method is right for your situation.
The actual legal process for getting a divorce varies by state. However, most marital termination proceedings usually include the some version of the following components:
- Summons and response
- Hearings and temporary orders
Alternatives for Dispute Resolution
Mediation is an alternative to litigation that can be less expensive and less stressful for divorcing couples and their children. In the mediation process, the couple works with a trained mediator to reach agreement on contested issues.
Arbitration is more like litigation than mediation. Instead of using a judge to decide the outcome, the parties agree to use an arbitrator. Each spouse will have a separate attorney who will represent each spouse's interests in negotiation.
- Collaborative Divorce
Collaborative divorce is a relatively new divorce process that requires an up-front commitment to resolving disputes by negotiation, compromise, and agreement. If either attorney moves the case toward litigation, both will be disqualified from representing their clients in the litigation. If the parties cannot reach agreement, both lawyers (and their law firms) must withdraw.
Alimony, Spousal Support, and Maintenance
Alimony, also known as spousal support or maintenance, is financial support paid by one spouse to another. Each state determines alimony differently. You should consult with an attorney in your state to determine what factors will be considered when deciding if, how much, and to whom alimony will be paid in your case.
The types of factors the courts consider vary from state to state, but may include the respective fault of the parties, the length of the marriage and each party's financial conditions after the property division.
Division of Property
While each state has different rules regarding the implementation of its system, most courts, in states applying non-community property rules, are required to make an "equitable division of property." However, the principle of equitable distribution of property is used to achieve the goal of distributing the property in a fair or just manner according to the specific circumstances of the divorce / dissolution of marriage. Unlike community property jurisdictions, which are required to divide the property equally between the divorcing spouses, the non-community property approach may consider many factors including non-financial contributions such as homemaking activities, missed opportunities, and social obligations.
Reaching the decision to end a marriage is enormously difficult. Once you do make the decision, it is in your best interest to approach the divorce process from a rational, businesslike perspective, which is extraordinarily difficult given the emotional issues with which you must also cope. Working with an attorney who is experienced in family law will ease your stress and help you get through the process to begin your new life.