Find answers to the most frequently asked questions about family law
There is an old saying that in criminal court you have bad people at their best, but in divorce court you have good people at their worst. A divorce sometimes brings out every negative emotion in the human experience and is the most stressful time a person and/or their children can go through. When choosing an attorney to represent you, you need to be able to connect with that attorney. Here are a few things they should be able to do:
-Ability to communicate well
During your case, you will need to be able to effectively communicate your concerns and expectations to your lawyer, and your attorney will need to be able to clearly explain things to you regarding your case and provide you with realistic expectations.
Your divorce case is likely to touch all aspects of your life-family, finances, retirement, career, etc. To protect your interests, your attorney should be knowledgeable and experienced enough in his or her practice to deal with the complexities of your case, while allowing you to continue your daily life as much as possible.
Your attorney's ability to maintain composure is not just about staying calm and focused with you, but also about exhibiting self-control before the Court or with your spouse's attorney, even if frustrated. Look for a divorce lawyer who will represent your interests strongly, but who will not take it personally when things do not turn out exactly as your attorney intended.
Every lawyer tries to respond to a client in an expeditious manner, but there are occasions in which the attorney is in court or unavailable to respond as quickly as the client may desire. To maintain a practice, a lawyer has to take on many cases, all of which are important, but responsibilities for each case can sometimes overlap in the Court's expectation as to the filing of pleadings or setting court appearances, and the lawyer needs the trust of the client that matters are being handled effectively and efficiently.
That Court first classifies what is marital property and what is non-marital property. Non-marital property is subject to division but can be considered when determining how to divide the marital property. Upon making the classification, the Court then considers various statutory factors to determine the division of the property, such as:
- the earning power of each spouse
- the expectation of a return on retirement benefits
- contributions made by one spouse to the education or career development of the other spouse
- the need of a custodial parent to stay in the marital home
Both parties and their respective lawyers will appear in court ready to present their respective testimony and evidence to the Court, which may include the presentment of witnesses as well. There are different types of hearings and ultimately the trial. A hearing may be more formal, as previously described, or it may be as simple as the lawyers making an argument to the Court, wherein you may not even have to be present. But whether a hearing or the ultimate trial, once in the courtroom, you may be required to stand at the bench before the Judge, take the witness stand or sit at counsel tables in the courtroom while the proceedings take place.
Friends and family may come to be supportive and sit in the gallery, but if they are testifying, they must sit outside the courtroom until called in to testify.
The lawyers will do most of the talking at the hearing, whether arguing or asking questions of witnesses. While they are asking questions of witnesses, you should be taking notes of those statements you dispute. You may or may not be asked to testify during the trial.
At the conclusion of the proceedings, the judge may issue a ruling/decision, or he or she may take it under advisement and render a decision later or by electronic mail. That ruling generally, but not always, stays in place until the end of your divorce. Ultimately, you will have a Judgement for Dissolution of Marriage, Order on Remaining Issues, and Parenting Plan Order that are final, replacing any and all interim or temporary orders and are subject to appeal.
Eventually, the overall case will be set for trial, if not settled. However, there will be intermittent temporary issues that will be set for hearings or argument prior to trial, as well as required statuses and case management dates. These court settings are usually set with many other cases, and if you are required to appear, you may have to wait for your case to be called. It is a frustrating process, but none the less a process which requires patience.
There is a process called discovery, wherein either party may request their spouse to answer a series of questions or turn over documents. Further, once the process has started, it must be supplemented occasionally until there is a trial or settlement. This process is time consuming and expensive. Most notably, without a doubt, it is one of the aspects an attorney hears the most complaints about, as it is usually one of the most frustrating aspects for the client. However, without discovery there is no context to determine if the agreement is fair. And, if you do discovery and your spouse does not disclose an asset, but you later find out about it, you have a right to return to court and ask for your interest in it. If there is no discovery, you cannot ask for it.
The primary guiding light for the Court is the child's best interest. The Court considers many factors that are set out by statute and will apply those factors to the facts of the case. Issues such as who the child is living with presently, the relationship with each parent, and a parent's ability to care for and provide for the child, and of growing importance, which parent will foster a relationship with the other parent.
Initially the Court will inquire if there is an agreement with regard to allocation of parental responsibilities of the children. If not, you and your spouse will be required to go to Mediation to resolve the issue as there is a high success rate not only with mediation, but statistically the parties are happier with the agreement and are more likely to follow it. However, should Mediation fail, then the Court, in most cases, will appoint a Guardian ad Litem. A Guardian ad Litem is a third attorney who will do an investigation and report to the Court their recommendation, which the Court will also take under consideration. If the Guardian ad Litem's recommendation does not settle the case, it will be set for trial. While this process seems straight forward, there can be many varied detours or alternatives in that process, which should be discussed with your Attorney.
Illinois law has set up two separate statutes guiding the calculation of child support and maintenance. It is complicated as there are numerous variables, i.e. for child support there is income, number of overnights, and deductions, but there is computer software that assists in making the calculations. In addition to the math calculations, the Court can consider various factors, such as lifestyle and needs of a parent or child, to deviate from the calculation.
After the entry of a Judgment for Dissolution of Marriage, Order on Remaining Issues and Parenting Plan, there are issues, particularly relating to children, that may be modifiable upon a substantial change of circumstances. These issues are presented for post-judgment relief. The most common is usually child support, either modification or enforcement. To bring that matter before the Court, you would have to file a petition to be heard.
Still have questions?
Schedule a consultation with Family Law Attorney Faye M. Lyon.
She has extensive experience and knowledge to answer any questions and guide you in the right direction.