When Your Spouse Refuses to Participate in the Divorce Process

Spouse Refuses to Participate in the Divorce ProcessThe best-case scenario for a divorce is an uncontested divorce, in which both parties agree to the dissolution of the marriage and cooperate in the dividing of marital property and determining things like alimony and custody (if necessary). But sometimes one spouse refuses to participate in the divorce process, making it difficult to complete the divorce process.

Contrary to popular belief, you do not need both parties to sign the papers in order to finalize a divorce. All you need is to file a petition for divorce and make sure you can prove your spouse is aware of the petition. Further, you have to be able to show you gave them a chance to respond, and each state has their own time requirements before the Court will find someone in “default.” In Illinois, all contested divorce cases start by serving your spouse with divorce papers. If he or she does not respond within 30 days of receiving your petition for divorce, or otherwise file any motions with the Court, you can ask the Court to find your spouse in default and to set the case for hearing on a default Judgement. If your spouse does not show up to court on the appointed date, the court may decide to grant you a default divorce. By failing to respond or show up to court, your spouse forfeits their right to have a say in the divorce process or judgment.

However, there are some instances in which the spouse cannot be located. So long as you can attest to the Court that you have made all reasonable attempts to locate your spouse, you can get what is known as a publication by divorce, in which you publish notice of you your petition for divorce in the local media outlets of the last known whereabouts of your spouse. Your notice has to run a certain number of times before the Court will accept service by publication, so it’s important to check your local Court Rules or consult with an experienced attorney for the required procedure. If your spouse still doesn’t do not respond within 30 days, most courts will grant a default judgment.

If your spouse did file a response to your petition for divorce, but refuses to participate further in the process, the judge may proceed as though it is an uncontested divorce, but you might have to wait to be assigned a court date. If you get a court date and your spouse fails to appear in court on the appointed day, the judge may enter orders based on the divorce petition and response.

As always, a competent family law attorney can help with this process, as even seeking a default divorce can be stressful since there are specific rules you must follow. If your spouse thinks they can avoid divorce by simply refusing to sign the papers, a letter from your attorney can set them straight. When they see that the divorce can proceed with or without their cooperation, most people will choose to cooperate in the divorce. There are many reasons one might refuse to sign divorce papers, but an experienced family law attorney can usually ensure that the divorce proceeds according to your wishes.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

What Can Be Included in A Prenuptial Agreement?

prenuptial agreementNot only is the divorce rate going up these days, but the rate at which couples are signing a prenuptial agreement has also been on the rise.

Although it has long been perceived as a measure to protect the wealthy from gold diggers, spouses of a wider range of incomes are now signing prenuptial agreements as a way to determine how their property will be divided in the event of a divorce. It essentially provides a blueprint for how debts, assets, and other financial matters will be handled within the marital estate if the marriage ends.

Rather than a sign that trust is lacking in the relationship, one could think of a prenuptial agreement as a way to speed up the divorce process and even improve marital happiness by helping spouses avoid disputes over money and property.

Reasons for Getting A Prenuptial Agreement

Spouses generally want to consider signing a prenuptial agreement if they have any personal or otherwise pre-marital property they want to protect from the possibility of getting touched during divorce. This includes any property the person owns, including real estate, a retirement account, and/or their business(es) if they’re a business owner. These agreements can, and often do, involve property the spouses expect they will receive after the date of the marriage, but that both parties agree will remain, for all intents and purposes, that spouse’s sole property.

Children from a prior relationship are also a big motivator for many people to get a prenuptial agreement, as many parents will want to protect any assets or funds the children might inherit. A prenuptial agreement can define what property will belong solely to that spouse and his or her specified beneficiaries.

What Cannot Be Included In A Prenuptial Agreement

While a prenuptial agreement can avoid many of the “classic” disputes people think of during a divorce, a prenuptial agreement cannot determine a party’s obligation for child support. Child support belongs to the child, and the child alone, and as such, public policy in Illinois indicates that it cannot be contracted in advance or given away by a parent. Because children’s financial needs change depending on their age and circumstances, it is impossible to determine ahead of time how much (if any) child support they may need by the time the couple gets divorced, which could be any number of years in the future, if it happens at all. This is the same rationale behind the policy prohibiting spouses in a divorce from entering into an Agreement that no child support will ever be owed to the other parent and/or that a child support amount cannot be modified in the future.

The same goes for custody of children. If a couple does get divorced, a judge will determine what is best for the child at that point in time.

Dividing Marital Property

Any property a person owns prior to getting married is generally considered their personal property, and it will most often be returned to them by a divorce judge even without a prenuptial agreement. To the contrary, property and assets acquired during marriage are presumed to be marital property regardless of how they are titled, and that’s where divorces can get contentious. In order to avoid such a mess, a prenuptial agreement can decide ahead of time how marital property will be divided in the event of a divorce.

Things That Are Commonly Included In Prenuptial Agreements

In addition to protecting personal property, assets, and debts, prenuptial agreements can determine the following:

  • A spouse’s right to use, manage, transfer, sell, or dispose of property during marriage
  • Alimony that will be paid by a spouse after divorce, including the amount and duration of payments
  • A spouse’s right to ownership of death benefits from their partner’s life insurance policy
  • A spouse’s requirement to create a will that will carry out the terms of the agreement; and
  • Which state laws can be applied to the contract in the event of divorce.

Enforceability

A prenuptial agreement is there to give both parties peace of mind, but there are certain requirements the contracts must meet in order to be enforceable in each state. Whichever state’s marriage law you decide will apply to your prenuptial agreement, make sure the contract abides by all of that state’s requirements for prenuptial agreements. The timing and execution of a premarital agreement is also an important consideration, as an agreement made under coercion or duress will be held unenforceable by the Court.

The attorneys at Sherer Law Offices have been providing legal representation for divorce cases, as well as all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

How Does Divorce Affect Your Credit Rating?

Credit RatingDivorce does not directly affect your credit rating. There’s no factor for divorce or marital status when calculating credit, but divorce does cause a lot of upheaval, specifically to your finances.

As if the stress of ending a marriage wasn’t bad enough, the impact of the financial strain that tends to result can hurt your credit score. Going from two incomes to one can make it hard to pay all your bills on time, and if you fall behind, that will hurt your credit.

The first thing you need to do when separating from your spouse is to come up with a new budget that takes into account your reduced income. If you’re expecting any child support or alimony as part of the divorce settlement, do not include it in your budget. Many spouses avoid making these payments as a form of revenge against their ex-spouse, regardless of what the court order says, while others are simply unable to make the payments due to their own financial circumstances. Either way, you’re better off not depending on that income.

Joint accounts that have both your name and your ex-spouse’s name can also be problematic, as can shared debt. Judges generally assign one spouse to be responsible for handling the account/debt, but your credit score doesn’t know that, nor does it care. As long as your name is on that account, your credit score will be affected by it. In some cases, when divorces get nasty, people will intentionally avoid paying off debt in order to hurt their ex-spouse’s credit rating. Of course, doing so also hurts their own credit rating, but people rarely act rationally when they’re hurt and angry.

For this reason, you will want to keep track of all accounts that bear your name, even if you’re not the primary account holder. It’s a good idea to at least make the minimum payments, then ask the court to order your ex-spouse to reimburse you for those payments.

Remember that joint accounts aren’t the only accounts that can affect your credit score. Any accounts on which you are listed as a cosigner or authorized user can also be used to hurt your credit score. Make sure all your accounts are in order when going through a divorce, and leave no stone unturned when making sure your name is only associated with the accounts for which you are directly responsible.

For this reason, when dividing up assets and responsibilities in the course of a divorce, it’s best to get one name completely removed from any joint accounts you held with your spouse during the marriage. Whether that means getting your name removed from accounts for which they are now responsible or vice versa.

Alternatively, you can simply close those accounts (both over the phone and in writing, and make sure you have a copy) and ask them not to reopen the account. The best way to regain total control of your finances after a divorce is to make sure your name is only associated with the accounts for which you are responsible, and that the accounts for which you are responsible bear only your name.

The attorneys at Sherer Law Offices have been providing legal representation for divorce cases, as well as all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

Dividing Property That Is in A Trust During Divorce

Dividing PropertyAny property acquired during the marriage is generally considered marital property – meaning both parties have an equal claim on the property – but that’s not always the case with trusts. A trust is a piece of property that is managed by a trustee for a beneficiary. The piece of property funding the trust can be anything from cash to real estate.

There are a variety of reasons someone might want to create a trust. In some cases, they may just want to avoid paying taxes on the property, or they may want to pass it along as an inheritance while avoiding going through probate court. Protecting certain assets from spouses in case the marriage doesn’t last may be the reason behind creating a trust, or it may just be a benefit if that sad day comes.

Trusts received as a gift or part of an inheritance are generally considered separate (non-marital) property, rather than marital property, under Illinois law.

Trusts acquired before marriage are generally not considered marital property unless the funds have been distributed and commingled with marital property. For example, if any funds from a trust had been deposited into a joint bank account shared by both partners, then it would be considered to have commingled with marital property, in which case a judge may consider the trust marital property when dividing assets.

Any property or assets acquired during divorce is generally considered marital property, regardless of whose name is on the title or listed as the beneficiary. This can be true of trusts as well, but there are some exceptions, namely the revocable trust.

Trusts can be revocable, which is when the grantor (creator of the trust) reserves the right to cancel the trust at any time. Beneficiaries of revocable trusts cannot access funds from the trust, which is one way for the grantors of trusts to help provide for a loved one while keeping the funds safe from that loved one’s spouse or ex-spouse.

Sometimes a spouse will create a trust and name the other spouse as the beneficiary as a way to leave something to the beneficiary if something were to happen to the grantor first. Such a trust can be created out of either marital or non-marital property, but either way, once divorce proceedings have begun, the trust is usually revoked and the property reverts to its previous status as either marital or non-marital property.

But most revocable trusts are not automatically revoked in the event of a divorce under Illinois law. If the property used to fund the trust was marital property, then the trust can be revoked in order to finish dividing the marital assets, but any trust assets that were not already set to go to an ex-spouse will automatically be revoked.

If the grantor is the one getting divorced, then all provisions of that trust pertaining to the grantor’s spouse, and which are revocable by the grantor, do get revoked. This includes any gifts or interests in property.

Although the beneficiary of a divorce may succeed in keeping all their rights to that trust secure, if there are children involved, the value of that trust will be included when calculating child support and/or spousal maintenance (alimony).

The attorneys at Sherer Law Offices have been providing legal representation for divorce cases, as well as all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

Common Mistakes People Make During Divorce

Common Mistakes People Make During DivorceWe all make mistakes, especially when we’re stressed and feeling emotional. Few things are more stressful or more emotional than divorce, but that’s also when it’s most important to refrain from making any mistakes.

When litigating and/or settling divorce, it’s nothing less than our lives at stake. In addition to financial assets and alimony, any marriage with children will also have to deal with dividing decision-making duties and parenting time schedules. These are all things no one can afford to lose, so if you’re getting divorced, make sure you’re not making these common mistakes:

Not listening to the experts.

We’ve already talked about why it’s important to hire a divorce attorney rather than trying it DIY, but it’s equally important to listen to the attorney you’ve hired. They’re the expert and they’re able to look at the situation without all the emotional baggage you’re bringing to the divorce. You don’t have to take their advice if you don’t feel like it’s really what you want, but if your attorney is strongly advising you to do (or avoid) something, you need to take that under serious consideration.

Taking advice from people other than your attorney.

Just as important as taking advice from your attorney is not taking advice from people other than your attorney. When getting divorced, everyone will be full of advice, and it may be tempting to take advice from everyone from your best friend to your pharmacist. Even though they may have the best of intentions, they won’t necessarily know what’s best for you.  Even if you trust their opinion or believe they have all the facts because they went through a divorce or custody battle in the past, understand that they don’t have all the facts. Every divorce is different and more than likely, the Judge handling your case now did not hear your friends’ case. Outcomes in divorce vary greatly depending on the Judge you have, and it is your attorney’s job to advise you on how the Judge on your case may rule.   Also, as we posted previously, the laws changed significantly in Illinois in 2015, 2016 and 2017 via separate amendments to the Illinois Marriage and Dissolution of Marriage Act. So, all of these changes mean your divorce will be handled much differently than those heard by the Court even just a year ago.

Fighting over the children.

In many divorces, each party just wants to hurt the other, and few things hurt worse than denying someone access to their children. But it’s important to set aside your hurt feelings and pride and consider what’s really best for the children. If the other party wants to spend time with their children and they’re not putting them in any danger by doing so, the Court will insist that you allow them to have time with their children. Denying time or the ability to participate in a co-parenting relationship usually backfires on the parent withholding the children. Finally, your relationship will benefit from it in the long run and your children will benefit from having both parents remain active and present in their lives.

Continuing to litigate a case when settling would make more sense.

There are many reasons people choose to continue to litigate a case rather than settle. Sometimes people think they can get more money out of their spouse if they have their “day in Court.” Other times they just want to get revenge on their spouse, and they decide to do that by dragging out the matter as long as possible.

But in many cases, you can get more money by settling the case as soon as possible and saving yourself the additional legal fees involved in continuing to litigate. And while you may want revenge for the pain your spouse inflicted on you, choosing to drag out the litigation, rather than settling and getting it over with, can do as much damage to you (both emotionally and financially) as to the other party. There’s no point in taking the time and energy to hurt someone else if you hurt yourself in the process. A knowledgeable and experienced attorney can advise you when it is worthwhile to litigate the case than to settle.

These and many other mistakes can be made when you allow yourself to be carried away by the harrowing emotions that can come along with divorce. Instead of focusing on the negative feelings you’re experiencing right now, try to consider the kind of relationship you want with your ex-spouse and your children later on down the road. Let that foresight (and your attorney) be your guide in how you handle your divorce.

The attorneys at Sherer Law Offices have been providing legal representation for divorce cases, as well as all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

Understanding Why A Do-It-Yourself Divorce Is Dangerous

do-it-yourself divorceThere are some projects where it might be practical to DIY – divorce is not one of those projects.

As wonderful as the internet is, it does not, in fact, contain all the answers. Conducting an internet search of the marriage laws in your state does not give you an idea of how those marriage laws actually play out in the courtroom. And TV courtroom dramas are nothing more than entertainment and are not meant to give the impression that being an attorney is easy and anyone can do it.

As appealing as it might sound to be able to pay a single, small fee for all the legal documents you’ll need for your divorce, if something sounds too good to be true, it probably is. There’s no denying the fact that attorneys cost money and many people getting divorced are afraid they can’t afford it. But the fact is they can’t afford not to hire an attorney to help them with their divorce.

When two people have been married for any length of time, they have formed a life together. They have combined not just living space, but assets and possessions. If they had children together or were jointly raising children from a previous relationship, those children will be heavily affected by the divorce, and they deserve more than a packet of documents off the internet.

More often than not, trying to save money with a DIY divorce backfires, sometimes to the point of one partner having to file for bankruptcy after the divorce. If you weren’t trained to defend your case in a courtroom, you won’t be properly equipped to represent your best interests. Even if there’s no one more motivated to protect your rights than you, that doesn’t mean you know the best way to go about doing so in a courtroom.

By insisting on a DIY divorce, you could unintentionally get a bad deal for yourself when negotiating settlements and end up with a far smaller settlement than an experienced divorce attorney could have gotten for you. If children are involved you could end up with less parenting time and/or less child support than you are owed.

And are you aware of the developing laws regarding pets in divorce? Some state divorce laws are starting to treat pets more like children (since their owners certainly do), but Illinois still treats pets like property – meaning, if you both acquired the pet during the marriage, the pet will be divided along with the furniture, heirlooms, etc. If you and your spouse acquired a pet together, and you want to make sure the pet stays with you, you’re going to need a competent divorce attorney on your side.

Many couples who try a DIY divorce end up back in the courtroom a year or two later to sort out all the things their DIY divorce missed or failed to handle properly. That costs more time and more court fees. Further, they’ll probably end up having to pay the attorneys’ fees they were hoping the DIY divorce would avoid, only now the fees will be much higher because the attorney will require more time, effort, and resources to sort out the mess made by the DIY divorce. Obtaining your rightful property may also be impossible if you’ve already given it away, as property settlements are generally not disturbed 30 days after the Judgment. Bottom line: it is easier and less expensive to do it right the first time.

Finally, don’t ever assume that a Court will just accept the settlement that you and your spouse come up with in your DIY divorce. More and more judges are refusing to enter divorce agreements that are based on online forms, even the ones the parties paid for using an online document servicer/generator. This is not because Judges prefer to have attorneys, but rather because the Judge can usually identify the problems with the documents or potential pitfalls with the parties’ agreement. So, by rejecting the documents and advising the parties to go seek an attorney to review them, the Judge is actually helping the parties by avoiding a situation where one or both of them has to return to Court down the road to fix the problems.

The attorneys at Sherer Law Offices have been providing legal representation for divorce cases, as well as all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

Dividing Pension and Retirement Benefits During Divorce

Dividing Pension and Retirement Benefits During DivorceWhen considering what they’re entitled to in a divorce, most people think of dividing up the bank accounts and the property. Few of them think of the pension, 401k, or other retirement plan, but they should.

In most states (depending on the relevant marriage law) all pension money earned during the marriage is considered an asset that belongs to both parties and should be divided accordingly. Along with the rest of the estate, the pension benefits can be divided at the time of the divorce. The court can issue an order (known as a domestic relations order) for the pension plan to make payments to a former spouse, in which case they’ll be listed as an Alternate Payee.

Most pension plans will pay benefits directly to an ex-spouse if the domestic relations order meets certain criteria. If there are survivor benefits on a pension, payments can be made for the life of the employee and even after, regardless of whether they die before or after retiring. But everything is dependent on the prevailing local law, so check your state, county, city, and village requirements if you’re getting divorced and want to know your chances of getting your share of your spouse’s pension. Illinois allows both court orders and model court orders.

But the federal Employee Retirement Income Security Act (ERISA) controls all corporate-defined retirement plans, as well as certain defined contribution plans, and it pre-empts any state court orders. If a domestic relations order meets the requirements laid out by the ERISA, it becomes known as a Qualified Domestic Relations Order (QDRO). A plan administrator can determine whether a particular retirement plan fulfills all the criteria for a QDRO.

Government and military plans are exempt from ERISA, but they have their own regulations. Government pension plans involved in a domestic relations order that meet the necessary requirements are also referred to as QDROs.

The criteria for qualifying as a QDRO include things like the need to state the amount or percentage of the benefits to be paid to the Alternate Payee (or at least the manner in which that amount or percentage is to be determined). They also require a specific number of payments or the time period to which the order applies.

There are also limits on what QDROs can do. For example, they cannot require the plan to pay any benefits in any option that is not already offered by the plan. They also cannot require the plan to pay benefits that are worth more than the value of the Primary Participant’s interest (an actuary will be needed to determine that number); and they cannot require payment be made to an Alternate Payee that has already been set aside to be paid to an earlier Alternate Payee.

The first thing that needs to be done when claiming a right to part of a spouse’s retirement plan is to determine the value. That’s easy for a contribution plan, such as a 401k or IRA, because the current value gets reported to the account holder in statements that are provided either monthly, quarterly, or annually. But determining the value for a corporate-sponsored pension gets a little trickier.

In all cases involving the division of retirement accounts, it is important to consult with an attorney who is experienced in family law and the preparation of these Orders. Because the Orders entered with the family Court must often lay out the key information for the execution of a QDRO, the drafting of the Judgment for Dissolution and/or any settlement documents is just as important as the preparation of the QDRO itself. A certified copy of the divorce judgment must be sent to the Plan Administrator with the QDRO in order to finalize the division of the account, so the terms of both must match.

The attorneys at Sherer Law Offices have been providing legal representation for divorce cases, as well as all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

 

What Is Involved In Adopting My Stepchild?

adopting my stepchildFor the most part, adopting a stepchild is much like adopting any other child. In fact, sometimes the process can be expedited since the child and your spouse are related.

But the biggest difference between adopting a stepchild and any other adoption can often be the biggest hurdle to overcome: you need permission from the child’s other parent (provided they’re still living), and granting that permission requires them to give up all their parental rights. It’s easy to understand why it might be difficult to convince a parent to give that up.

On the other hand, giving up all parental rights also means giving up all responsibilities, including child support. If the other parent does not have a strong relationship with their child, they may even welcome an opportunity to stop making those payments.

In some cases, the other parent may recognize that surrendering their parental rights so the child can be adopted by the stepparent is in the best interests of the child, in which case they’ll be more likely to provide their consent. In order to voluntarily surrender their parental rights, the other parent will need to sign appropriate Court documents to surrender their rights and attest that they understand what they are doing in front of a Judge before the adoption can proceed.

If the other parent refuses to give up their parental responsibilities, and you can provide evidence that they are an unfit parent, you can have their parental rights terminated. It’s an extreme measure and it requires being able to meet a very high burden of proof. There are several bases to claim unfitness, but the more common issues that arise are abandonment, physical abuse or neglect, and/or significant drug use.

In order to prove abandonment, you must be able to demonstrate that the other parent has not communicated with the child, by no fault of your own, and they also provided financial support for the child for a defined length of time. In many cases, the Judge will want to see that the parent has been out of touch for at least several years, even if the statutory duration is a shorter period.

If you accuse the other parent of being an unfit parent, most courts will respond by conducting a fitness hearing, which it will use to determine whether the other parent has been abusive, neglectful, incarcerated, suffers from an addiction, or fails to visit the child. If parental rights are terminated, the Court can move on to the secondary issue of whether the adoption will be granted, which is a separate proceeding.

As explained above, obtaining the permission of the other parent (or having them deemed an unfit parent by the prevailing court) is just the first step. Once the Petition for Adoption is filed, the Court will also be appointing a Guardian Ad Litem to investigate the facts of the case and make a recommendation to the Court on whether or not the adoption is in the best interest of the child. The GAL also has very specific duties under the statute, and everything about the adoptions process must strictly adhere to the applicable laws. If it strays in any way, it could subject the adoption to being overturned later down the road, which could cause a lot of distress and/or damage for the child.

The basic takeaway from adoption law in Illinois is that you really need to have an experienced attorney handling these proceedings for you. There are several factors at play and procedures to complete, even for an “uncontested” adoption where one parent is agreeing to terminate his/her rights.

The attorneys at Sherer Law Offices have been providing legal representation for divorce cases, as well as all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

Divorcing An Absent Spouse

Divorcing An Absent SpouseIt can be hard enough to come to an agreement with your spouse that it’s time to end the marriage, but what if your spouse skipped town, and you have no idea where they might be? If you’re ready to move on with your life after that marriage, but can’t find your spouse, you can still file for a divorce, but ultimately serve them by publication.

For many years in Illinois, you needed to prove your spouse was at fault for causing the dissolution of your marriage if you wanted to succeed in securing a divorce. You needed to provide evidence that they had committed adultery, were abusive, abandoned you, and/or was habitually drunk, etc. Some time ago, Illinois adopted a no-fault divorce option in which people listed “irreconcilable differences” as their reason for divorce. It’s known as the no-fault option because it does not blame either spouse for the dissolution of the marriage, but merely recognizes that the two parties have reached a point where maintaining the marriage is no longer possible or desirable. Prior to 2016, a petitioning party had to be separated from their spouse for two (2) years before a Judgment could be entered, unless both parties had signed a written acknowledgment that they had been separated for at least six (6) months and were agreeing to waive the 2-year separation requirement.

In 2016, Illinois became a true “No Fault” state when it eliminated all grounds for divorce except for irreconcilable differences. Further, under the current law, you only have to show that you have been living separate and apart from your spouse for six (6) months immediately prior to the entry of a Judgment for Dissolution. Such a showing creates an irrebuttable presumption that irreconcilable differences have arisen in the marriage, and you can seek a divorce much sooner than the old law.

So, how does this change in the law affect how and when you can file for divorce if your spouse is nowhere to be found?   Now, you can file for divorce against an absent spouse and you only have to show that you’ve been separated for six (6) months before requesting the Court enter a Judgment for Dissolution against your spouse on a “default” basis. But, some things have to be shown to the Court before they will default your spouse, as explained below.

Once you file your Petition for Dissolution, you have to actually serve your spouse with the Petition before the Court can proceed with any default proceedings. It is important to note as well that marriage and divorce laws vary from state to state, so be sure to familiarize yourself with the requirements for filing a Petition for Dissolution and also with your State’s laws on service of process, including specifically on what is called “service by publication.” There’s usually a minimum amount of time you and your spouse must have been living apart before you can file for divorce, and you must also be able to prove that you preformed “due diligence” in trying to locate your spouse but were still unable to find them for purposes of serving them personally. It is important to also speak with an attorney before assuming you can or should serve someone by publication, as there may be other methods of “personal service” that are still available to you even if you do not have a known residential address for your spouse.

The requirements for due diligence also vary from state to state, but service by publication generally requires you to publish a notice that you are seeking divorce from your spouse in all the newspapers published in the area in which they were last known to reside. If, after a specified amount of time, the spouse does not respond to your notices, you can submit proof to the court that you performed due diligence in trying to find your spouse and to notify them of your intention to divorce them. Such proof will usually include a copy of the publication of your notice with the motion you file with the Court to request that the Judge find that you successfully served your spouse via publication.

Once service by publication is established, the court can then set the case for a final hearing and issue a divorce, even in the absence of your spouse. If you are truly unable to locate your spouse, the court does have the ability to enter orders for all aspects of the dissolution of the marriage, including division of property and assignment of debts. The Court may also enter default orders relating to parenting time and parental decision-making (formerly known as “custody”). However, in many jurisdictions, the Court may be more reluctant to enter default orders relating to child issues depending on the circumstances, so it is important to speak with an attorney who regularly practices in the jurisdiction you live to determine whether a default order is likely in your case.

While the Courts do not require that you have an attorney to serve your spouse via publication and/or seek a Judgment for Dissolution by default, it’s always recommended to have a knowledgeable legal professional help you through the process. There are a lot of forms to fill out, many of which are full of legal jargon, and you don’t want to miss any necessary steps by accident. A competent family and divorce attorney can help facilitate the divorce process for you as quickly and painlessly as possible, while making sure you get everything you need.

The attorneys at Sherer Law Offices have been providing legal representation for divorce cases for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

How Do I Get Temporary Support Until My Divorce Is Final?

temporary supportDivorce agreements commonly include orders for alimony and/or child support, but the divorce process can take months, or even years, to complete. So what do you do if you can’t wait that long to pay your bills?

Fortunately, you can file a petition for temporary relief. Once the court receives the proper form (which varies, depending on the court), a brief hearing will be scheduled in which you can make your case as to why you need financial assistance now. Under the new amendments passed to the Illinois Marriage and Dissolution of Marriage Act (IMDMA) in 2016, hearing on temporary child support or temporary maintenance (a.k.a. alimony) can be heard on a summary basis, unless one or both parties request a full evidentiary hearing with good cause. A summary hearing means that the Judge will review the parties’ Financial Statements, which must be filed in all divorce cases, and supporting financial documents that are attached to the Financial Statements to make a ruling on temporary support. No testimony is presented during these hearings, but the Judge rather reviews the documents alone. However, if a party wants to present evidence, perhaps to counter the other party’s arguments for support, then an evidentiary hearing may be scheduled in lieu of a summary proceeding.

In any hearing for temporary relief, the judge will first determine whether you should receive any alimony or child support, and if so, how much you will receive. The Judge can also divide the party’s use of and access to assets, such as real estate, cars, and access to bank accounts, all on a temporary basis until the divorce is finalized. The temporary order will likely include a provision that prohibits either party from selling significant financial assets before the divorce has been made final.

If you can’t afford an attorney, you do have the option of filing a petition for temporary relief on your own. Most of the court’s forms can be found online or at your local Family Court. You may file the paperwork yourself and receive a valid order for financial support from a Family Court Judge without having to pay for an attorney, but it is always suggested that you seek legal counsel, as these motions do require a lot of financial documentation as well as submission of various forms and affidavits.

If you and your spouse are still getting along fairly well and they make a verbal promise to continue supporting you, that’s great, but don’t rely on it. Attorneys always recommend you get a promise in writing, especially when your livelihood is at stake. Even the best intentions can go unfulfilled, so don’t rely on a verbal contract alone.

If you and your spouse have managed to reach your own agreement regarding spousal and/or child support, you can request that the Court enter an Agreed Order memorializing these terms. The judge will then review the terms to make sure the agreement is fair to both parties before approving any agreed order.

The process of getting divorced is stressful enough. You don’t need to make it more stressful by wondering how you’re going to pay the bills. Fortunately, the courts recognize this and have put in place systems to help give you one less thing to worry about.

The attorneys at Sherer Law Offices have been providing legal representation for divorce cases for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

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