Family Law Practice Areas

Commonly known as divorce. The divorce process is governed by the Illinois Marriage and Dissolution of Marriage Act . In order to proceed, you must have grounds for the divorce. Most divorces today are based on the no-fault ground of irreconcilable differences. The advantage of proceeding on the grounds of no-fault is the divorce process focuses on other issues. Think of your marriage as a partnership. If the partnership is over, certain issues must be resolved such as property division, child custody, child support, and maintenance (formerly known as alimony).

This is a term can be used in a couple contexts. First there is the legal side. A divorce degree entered by a judge will dissolve the legal bonds of matrimony. However a marriage can be found to be invalid through a Declaration of Invalidity The court may find the marriage to be invalid if one of the spouses lacked capacity to consent, lacked physical capacity to consummate, was under age, or the marriage was prohibited.

If you were married in the Church, you entered into the sacrament of marriage. There is an annulment process in the Catholic Church. During this process, the sacramental bond is scrutinized to determine if both parties possessed the required consent and capacity at the time they exchanged vows.

Generally, all property acquired during the marriage (except for gifts and inheritances) is considered “marital property” or the marital estate. If you and your spouse cannot agree on how the property should be divided, the court is required to divide your assets equitably. Equitable does not necessarily mean equal. When the court divides your assets it will consider the length of the marriage, the financial needs and means of each spouse, and how much each spouse contributed to the marital estate. Much time can be spent on determining what property exists, how it should be classified (marital or non-marital), the value and how it should be divided. If you cannot agree on the value of an asset, a valuator may be hired.

A pension, retirement plan or other type of deferred compensation, such as a 401(k) plan or stock options, is considered property. If any portion of it was earned during the course of the marriage, it is a marital asset subject to being valued and divided. What happens if the pension or retirement plan was around longer than the marriage? Illinois law has a specific formula to determine the “marital portion”. In order to properly divide the pension or retirement plan, a specific order called a Qualified Domestic Relations Order (QDRO) or Qualified Illinois Domestic Relations Order (QILDRO) must be prepared, entered and served on the plan administrator. These orders can be highly technical and complex. Be sure you retain an attorney who has expertise in this area.

Child custody is typically the most emotional issue surrounding a divorce. Whether or not you can agree on who should have custody, it is important to protect your child(ren) at all times. If you cannot agree on custody, the court will make the decision for you. To assist in making a sound decision, the court may require your child(ren) have their own representative. Depending on the issues raised, the court could order home studies, mental health examinations and counseling. Why does the court do this? The court is saddled with the responsibility of determining what is the best interests of the child(ren). The court will consider the parents' wishes, the child's wishes (depending on the age of the child), the relationship between the child and each parent, as well as any siblings, and the child's current adjustment to home and school. For the welfare of the child(ren) it is better that an agreement is reached. But if an agreement is out of the question, we are capable of representing your custodial concerns.

Just as the non-custodial parent has an obligation to pay child support, that parent also has a right (except in special circumstances) to visit the child(ren). In addition to the parent, grandparents and siblings may also want specific times to visit. Visitation days and times are spelled out in an order. Be sure your attorney can handle your concerns regarding visitation.

So custody is resolved, how is the child(ren) financially supported? Child support is the right of the child. An order will be entered to handle child support. Both parents have an obligation to financially support their child(ren). The non-custodial parent (or non-residential parent if there is “joint custody”) is usually ordered to pay child support. The Illinois legislature has determined statutory guidelines which the court must follow in most situations. You want to make sure the calculations are correct. We look at every case to make sure the amount of support being paid is fair for the parents and the child(ren).

What do you do if you need to change the order that was entered? What you do not do is simply agree between the two of you without entering an order detailing your agreement. The only person who can modify a court order is…the court. If you have an agreement, you should let the court know through a properly drafted motion and agreed order. The party seeking to modify the order must file the motion with the court and show a change in circumstances that would justify the modification. So if you want to modify the prior order because you think you should be receiving more support, or you believe you should be paying less support or if you want to move with the child(ren) out of state or a significant distance from the other parent, a petition to modify the divorce decree must be prepared. If you receive a motion to modify, don’t ignore it – it won’t go away.

Spouses can separate and live apart without obtaining a divorce. If you want to make sure parameters are set that each person must follow, a petition for legal separation must be filed. Similar to a divorce, a legal separation will establish support and custody. Because a legal separation explores many of the same issues as a divorce, costs for a legal separation will be comparable to the costs of a divorce.

Establishing the father/child relationship through a parentage or paternity proceeding will determine the rights and responsibilities of both parents. Once paternity is established, the father has the right to seek custody and visitation. He also has the responsibility to financially support the child including paying child support. Don’t delay. Be sure your rights are fully protected by calling The Law Office of Paul A. Frigo, LLC.

The Illinois Domestic Violence Act prohibits an individual from physically abusing, harassing, or threatening a family member or household member, including ex-spouses, ex-boyfriends/girlfriends, roommates and ex-roommates, among others.  The way to be protected is through an order of protection.

What if one spouse cannot financially support themselves? Maintenance (formerly known as alimony) is support paid from one spouse to the other. This is different from and in addition to child support. If there is a request for maintenance, the court will decide whether or not to make an award of maintenance, will it be temporary or permanent, and the amount. The court will consideration the length of the marriage; each spouse's: income, needs, and earning capacity; the time required for the receiving spouse to become self-supporting; and the degree to which one spouse contributed to the education or career of the other spouse. Be sure your attorney is equipped to present your position and can handle the finer points of this complex area to the court.