Frequently Asked Questions

General Questions:

Why did you become a family law attorney?

I chose family law because I like the positive effect that I have on people’s lives. There is nothing more satisfying than helping a father maintain a relationship with his son, helping ensure a wife a comfortable retirement, or simply helping someone move on to a more rewarding, happier life.

Does your life experience affect your work?

Before becoming a lawyer, I lived and worked in Latin America, Europe, and Asia. The exposure to different cultures made me more open minded, more sympathetic, and more accepting of all people.This understanding of people (and their follies) helps me be a better lawyer because I truly believe that we should be as open minded about others as we would like others to be about us.

How do you like your job?

It’s a very challenging and stimulating environment. You either like it or you don’t. I like it. I experience the personal rewards of helping clients navigate through the most difficult time of their lives, and, because my clients are usually financially sound, I have the resources available to hire the experts needed to fight for my client and present my client’s position in the most favorable light. Also, I am lucky that my professional success allows me to work against the best divorce lawyers in Chicago as well as work with the best local child-custody experts, forensic evaluators, and accountants. I like the intellectual stimulation and I believe that it helps me represent my clients better.

What Does The Divorce Process Consist Of?

At its core, a divorce is the entry of a judgment that says that your marriage is dissolved. You begin the legal process that culminates in the dissolution by filing a Petition for Dissolution of  Marriage. That’s really all you need. A Petition to begin the divorce and a Judgment to finalize it.

If you add in the procedural steps (such as serving the other side) the steps are as follow:

  1. Filing Petition for Dissolution of Marriage by the Petitioner spouse who begins the divorce proceeding,
  2. Serving Petition to the other party (either personal service or service by publication if you don’t know how to reach your spouse.
  3. Exchanging financial information with your spouse,
  4. Child-custody trial or reaching a Parenting Agreement (this may or may not happen parallel to the trial regarding the finances   see below)
  5. Trial or reaching a Marital Settlement Agreement with your spouse,
  6. Entry of  Judgment for Dissolution of  Marriage by judge (this may happen by agreement of the parties through a Marital Settlement Agreement or after a trial when the judge makes his or her ruling).

How Long Does A Divorce Typically Take?

If you reached a full agreement before filing the Petition for Dissolution of Marriage, you can be divorced as little as 10 days after filing your Petition for Dissolution.

If you have a contested divorce which does not settle, it is usually tried within two years of the filing.

I Have Already Been Served Papers By My Spouse – What Do I Do?

You need to decide whether you want to hire a lawyer or not as soon as possible. If you choose not to hire a lawyer, you may obtain some guidance by going to illinoislegalaid.org which provides legal guidance for pro-se litigants.
If you can afford it, it is best to hire a lawyer because there are some subtleties that you might miss if you’re representing yourself pro-se. For example, even though your spouse served you with papers it does not necessarily mean that the court where your spouse filed for divorce has jurisdiction over you. If you file your appearance without objecting to jurisdiction you may inadvertently submit yourself to the court’s jurisdiction when it might have been to your advantage to contest jurisdiction.

My Spouse Had An Affair – Will That Affect The Outcome?

Generally speaking there are only two scenarios where your spouse’s affair may affect the outcome of a case. First, if your spouse spent marital money on his or her paramour then you might be entitled to reimbursement of your share of the money they spent on the paramour because, obviously, a portion of that marital money was yours and you would never willingly agreed to give your money to the person who broke up your marriage. The second scenario where your spouse’s affair might affect the outcome is in child custody case if your spouse let his or her affair interfere with their child rearing. For example, a court might count the affair against your spouse in allocating parental responsibilities or parenting time if your spouse inappropriately introduced his or her paramour to the child or if your spouse abdicated his or her parenting duties to spend time with the paramour.

How Does A Divorce Settlement Differ From A Divorce Trial?

A divorce settlement can be reached an any stage in a divorce. You can even reach a settlement before you even file the Petition for Dissolution of Marriage. A settlement will likely save you in attorney’s fees. I always recommend settling if my client’s spouse is willing to agree to reasonable terms.

A trial is the culmination of a divorce proceeding. This means that you will have passed all the stages of a divorce proceeding (i.e. filing Petition for Dissolution of Marriage, financial discovery, custody evaluation, business appraisal, preparing for trial) before your case is finished. For obvious reasons a trial is much more time consuming and expensive than settling. The other drawback of a trial is that the judge makes the final decision, so you may not get as personalized a judgment as you might have received if you had successfully negotiated the outcome with your spouse.

Cost Of Divorce:

How Much Does A Typical Divorce Cost?

If your divorce is uncontested your divorce will be cheaper than a contested one and, an attorney may be able to estimate the cost or give you a flat fee for your divorce after discussing the specific of your situation. Generally speaking, an uncontested divorce should not cost more than $3,500. A contested divorce, on the other hand, is very difficult to guesstimate the cost because cost is dependent on many variables (i.e., if you are finally able to settle or it needs to go to trial, whether you’re arguing all issues…etc). At Fahnert LLC our cheapest contested divorces have been below $5,000 (because we succeeded at settling the case) to over $100,000 (because we had to prepare a complex and difficult case for trial).

What Factors Go Into the Cost of a Divorce?

Some of the issues that might affect the cost of a divorce are:

  1. How reasonable you and your spouse are with your expectations for the outcome of the case,
  2. The philosophy and attitude of the attorney advising you and your spouse (attorneys that focus on reaching agreement are, obviously, cheaper than ones who are more argumentative in nature),
  3. The philosophy and attitude of any court appointed lawyer such as a children’s representative,
  4. The worth of the assets that you’re arguing over (it doesn’t make sense to spend a lot on attorney’s fees when you’re arguing over nominal property),
  5. The complexity of the case (are there businesses involved that need to be valued? Are you requesting reimbursement for dissipation of the marital estate? Is an accountant needed to find hidden money?),
  6. The issues that you are arguing (can you reach an agreement on at least some issues such as child custody, child support, maintenance?),
  7. How helpful the judge is in helping you reach a resolution,
  8. The truthfulness and honesty of everyone involved in the case (if anyone lies, the other side may have to spend unnecessary time and energy disproving the lie).

What Can I Do To Keep My Costs Down?

Here are the things you can do to keep costs down:

  1. Reach a full agreement with your spouse,
  2. Reach a partial agreement with your spouse on some issues,
  3. Resolve minor day-to-day issues without your lawyer (ie., it’s probably quicker and easier for you to tell your spouse what cold medicine the doctor recommended your daughter take than for the attorneys to draft letters informing the other side of this),
  4. Be honest and don’t give your spouse reason to distrust you (a suspicious spouse often refuses to settle because they believe there is something you’re not telling them. Also, suspicious spouses tend to hire experts and spend more money investigating things than they might have if they trusted you).
 

I Don’t Work – Can The Court Make My Spouse Pay For My Attorney?

Maybe. It depends on how many assets you have at your disposal. For example, you might be the one who ends up paying for your spouses attorney if you are a stay-at-home-mom with $1,000,000 in your personal savings account and your spouse earns $30,000 per year, has access to no assets, and pays the $2,000 per month mortgage with his or her salary. Generally speaking though, the higher earning spouse often pays the attorney’s fees of the lower earning spouse.

Marital Assets:

How Do Courts Divide Marital Assets?

Courts are required to divide marital assets “in just proportions considering all relevant factors” (750 icicles 5/503 d – Disposition of property and debt). If both parties are in a similar position in life and have the same future prospects then it is likely that the judge may divide the assets 50/50. However, in a case where one party has higher needs than another party (such as an ill or handicapped person), it might be equitable to give the higher need party more than half of the marital estate. For example, imagine a couple where one party is in a wheel chair and the parties spent the bulk of the marital assets fixing the home to make it wheelchair accessible. In this situation it might be equitable to award the handicapped party the marital home even if it results in awarding more than 50% of the marital estate to the handicapped spouse. This is just an example, but there are many situations where an equitable division of property is not splitting the property in half.

The Illinois statute says that a court must consider all relevant factors in making its decision of how to apportion the marital estate. Some of of the relevant factors to be considered are (1) the contribution of each party to the marriage (this can include contributions as a home-maker, (2) any dissipation of assets (dissipation is when property is used to benefit only one spouse, for a reason unrelated to the marriage, when the marriage is irreconcilably breaking down), (3) value of the non-marital property awarded to each party (the more non-marital property you have, the less you need the marital property), (4) duration of the marriage, (5) Relative economic circumstances of the parties (if one party makes $1,000,000 per year and the other makes nominal income, it might be fair to award the lower earning spouse a larger share of the marital estate), and (5) prenuptial and postnuptial agreements between the parties.

Can I Lose My Home or Retirement Assets In A Divorce?

 I wouldn’t say “loose” because you’ll know where the marital assets went: your spouse. But yes, even if a marital asset is under your name it may still be awarded to the other spouse in a divorce. Generally speaking, though, judges will try to split the marital property in the easiest way possible. This means that if they can find a way to fairly apportion the marital assets without making you give up assets that are under your name they will consider taking that option.

Obviously, you don’t have to worry about your home or retirement assets being awarded to your spouse if the home or assets are your non-marital property.

Can My Spouse Lock Me Out of My House/Bank Accounts?

Yes and no. There’s no specific law forbidding them from locking you out of the house or bank account. On the other hand, if you go into court and tell the judge that you were locked out of the house or bank account, the judge will probably rule in your favor by ordering your spouse to let you back into the house or order your spouse to give you your money back. At the end of  a case, whether it is by agreement or court judgement, all joint bank accounts will likely be closed and one of you (or neither if you sell) will be awarded the former marital home.

My Spouse Controls Our Money – How Will I Afford This?

If your spouse controls the money it is likely that you can petition the court to make your spouse pay your attorney’s fees. If you are in this situation it is important to remember that even though it is your spouse who is paying your lawyer, the funds used to pay your attorney are your own marital funds, so you should still use your attorney judiciously to keep the case as affordable as possible.

Regardless of whether I’m representing the spouse with access to the funds or the spouse without access to the funds, I usually recommend that the spouse with no access to money be granted access to a relatively large sum of money, say $50,000, from which they can pay their attorney. Giving the no-access-to-money spouse enough money that they can themselves pay their attorney’s fees helps prevent the illusion that their attorney is being “paid” by their spouse thet happens if the spouse is the one writing the checks to the attorney. There is a special pain that happens when you write a large check that you just don’t get if someone else paying for you, even if you know that the money is ultimately coming from the same source. I believe that people who have to pay their own attorney’s fees use their attorneys more judiciously.

Will I Have To Pay Child Support or Alimony, And How Is It Calculated?

If you have children it is likely that either you or your spouse will have to pay child support to the other. Generally speaking the parent who spends less time with the children pays the pays the parent who spends more time with the children. This is not always the case. In some unusual circumstances the parent who spends less time with the children may receive child support. For example, imagine a multimillionaire parent who is awarded more parenting time with the children because their spouse is mentally ill. Imagine that the mentally ill spouse has no non-marital property, is incapable of holding down a job, and the parties signed a prenup where the mentally ill spouse is awarded no property or assets. In such a scenario a court might award the parent who spends less time with the children child support, so that the children have a comfortable home in which to stay when they spend time with each parent.

Custody and Children:

My Spouse Will Not Allow Me To Talk To My Child(ren) – What Do I Do?

If there is no court order saying that you can speak with the children, you can file a motion explaining your situation and asking that the court order your spouse to let you speak with your children. If there is already a court order saying that your spouse has to let you speak with your children, then you can file a Motion for Rule to Show Cause. Filing this motion forces your spouse to show a good reason for why they have not been complying with the court order. If they can’t show a good reason then they may be sanctioned.

I Want To Move With My Child(ren)– What Do I Do?

You need leave of court to move out of state with the children during a divorce proceeding or after a custody judgment has been entered. This kind of issue is often one of the most difficult, time consuming, and emotional part of a child custody proceeding.

I Am A Father – Will This Affect The Outcome of My Custody Case?

I have three answers to this question:

  1. There’s no point in worrying about something over which you have no control. You should focus on what you believe is best for your child and fight for that.
  2. Most judges are not gender biased when it comes to awarding child custody. However, often in a custody case there are other professionals involved such as a custody evaluator or children’s representative. The opinions and positions of these professionals often carry a lot of weight with the court. I have felt that sometimes some of these professionals might have made some assumptions about the parents based on gender, race, or class.
  3. Even if some of the people involved in your child custody case are predisposed to stereotypes it doesn’t necessary mean that it will work against the father. I remember one case where the husband and wife were into S&M. The experts involved in the case were seemed to think that my clients sexual interests somehow affected ability to mother her children but were totally unconcerned with the father’s interests. Gender stereotypes work in the mom’s favor if she fits the stereotype of a 50’s housewife; they work in dad’s favor the further mom veers from the stereotype.

How Will the New Illinois Family Laws Affect My Case?

The new statue has modernized and updated the divorce and child-custody sections, but it won’t necessarily significantly affect the outcome of your case.

The significant changes in child-custody are:

  1. The term “custody” is no longer used. We now have “allocation of parental responsibilities”. The term custody never made any sense anyway, because parents always had to reach an agreement as to who should make the decisions regarding the children’s health, education, religions upbringing, and extra curricular activities. Sometimes parents decided to split everything 50/50 or have on parent decide one issue and the other parent decide the other.
  2. The term “visitation” is no longer used. We now have “parenting time”. “Visitation” never made any sense, because no parent has ever “visited” with their children. Parenting time is the more appropriate term.

Maintenance (spousal support):

Before the new statute, the judge could just award maintenance that felt right (after considering a number of factors, such as future earning potential). There was no statue outlining how maintenance should be calculated. The statute now provides an equation to calculate maintenance. A judge still has discretion to deviate or even deny maintenance to a spouse but you at least now there is a frame work for lawyers and judges to work with. This is significantly better than before because often litigants would have wildly different ideas of what was “fair” maintenance amount and would spend significant sums of money litigating this issue. The statutory maintenance calculation should greatly reduce litigation and help in settlement negotiations.

Moving Forward:

How Do I Get Started With A Divorce?

You can start your divorce in one of two ways:

  1. Reach an agreement with your spouse and then file for divorce, or
  2. File for divorce and then attempt to reach an agreement with your spouse or prepare for trial.

If you have a really amicable relationship with your spouse it is probably worth it to consider reaching an agreement with your spouse before filing because the informal nature of the process will probably help you resolve things more quickly and affordably. You can still hire attorney’s to help you through the process of reaching agreement but if you hire us before you file, you won’t have to pay for us to go to court unnecessarily while you reach an agreement.

If you don’t have an amicable relationship with your spouse

What Documents Do I Need to Gather?

Before you get divorced, you must exchange with your spouse:

  1. A Financial Affidavit
  2. The last two calendar year’s of your filed income federal and state tax returns (including individual, partnership and corporate); If you haven’t filed tax returns for the past two years then you should provide your spouse with your last filed tax returns and all W-2’s, 1099’s and K-1’s that you have received for the years you didn’t file taxes.
  3. Your most recent pay stub (if it includes year to date information) or the five most recent pay stubs.

Before Filing:
Try to gather all financial information regarding your and your spouse’s finances as you can. You should make sure not to break the law (so don’t illegally go log into your spouse’s business account). Any and all information and knowledge you acquire about your finances will be useful to you during your divorce. For example, if you are totally unaware of your family finances, then even just knowing what banks your spouse uses can be very helpful because then during the divorce your attorney can subpoena those banks and get the records.

What Should I Consider When Gathering Evidence For My Case?

Nearly any type of evidence can be used in a divorce case, you can use voice mails, text messages, phone records, bank records, medical records. The only evidence you cannot use is evidence that was illegally obtained by you or medical records where your spouse has not waived the confidentiality).

What All Can Be Used As Evidence In A Divorce Case?

The evidence you need for a trial is dependent on what your spouse is alleging. For example, if you agree as to all the facts, then there is no need to gather any evidence at all. However, if your spouse is untruthful, then you and your lawyer need to gather evidence to enlighten the court.

So, in a case where your abusive spouse is claiming that they never said a bad word to you, a hateful voicemail might make for good evidence. In a case where your spouse claims to have no savings, his bank account records would be helpful in proving otherwise.

I Don’t Know Where My Spouse Is – How Will I Serve Them With Papers?

You can get divorced even if you cannot serve your spouse with papers. The Judge will require you to make a good faith attempt at finding your spouse (such as searching the internet and asking mutual friends who might know his whereabouts). The only drawback to getting divorce without serving your spouse is that you can’t legally divide the marital estate. So, if you divorce your spouse without serving him or her, you may get custody of the kids and may be able to re-marry, but they’ll still be able to take you back to court the marital estate.