24 Myth Busting FAQs
Divorce Myths and Misconceptions
Divorce is a popular topic that is widely discussed and information concerning divorce and the legal system are rarely as accurate as legend would have us believe. What we hear is often incorrect by the time it gets to us, sometimes we do not hear it correctly, and sometimes we do not repeat it accurately.
As information flows through hundreds of conversations, it can easily become diluted or distorted and turn into misinformation (also known as myth or misconception). Misinformation leads us to having incorrect beliefs, which, in turn, set us up to making avoidable mistakes and incorrect choices.
Divorce has more than its share of myths and misconceptions. This page aims to set the record straight on some the most common of these.
Divorce FAQ's
FAQ stands for Frequently Asked Questions. These are the questions that divorcing parties ask the most. Since many stem from and intertwine with myth, we have combined our discussions of both.
Here is the real scoop on these everyday items:
Can my spouse prevent me from getting a divorce?
Does the court make us go to marriage counseling?
Annulment: How short does the marriage have to be?
When does the legal separation take place?
If a couple already agrees on everything, should they use mediation?
What happens to my health insurance?
Does it help to be the first to file?
What's the deal on using one lawyer?
Can I date before the divorce is final?
Does Illinois have any waiting periods?
What is arbitration and does Illinois allow its use in divorce?
At what age can the kids choose who they want to live with?
It is true that no fault is quicker and cheaper?
Do we have to be separated six months before we can file?
Can a pregnant person get divorced before the baby is born?
Does child support include day care, extracurricular, or activity expenses?
Does the spouse that receives child support have to pay taxes on it?
My spouse is telling me to move out. Do I have to?
If I do move out, is it considered abandonment?
Can I buy my own house before the divorce is final?
Does adultery affect who gets custody?
If we reach a settlement, do we still have to go to court?
Can my spouse prevent me from getting a divorce?
No. You do not need your spouse's consent to get a divorce, but you must be able to prove that he or she committed one of Illinois' eleven grounds for divorce.
Does the court make us go to marriage counseling?
No. While the court is sensitive to maintaining the integrity of the family unit, it is not within its province to require a party to reconsider his or her decision to seek a divorce.
Annulment: How short does the marriage have to be?
The length of the marriage does not determine if you qualify to get an annulment, now known as Declaration of Invalidity of Marriage.
Marriages are not annulled (or invalidated) because the parties have been married for a short time and wish they weren't or if they feel they made a mistake. The court grants "Annulments" only when it determines that:
- a party did not have the capacity to consent to the marriage (mentally unable, intoxicated or under the influence of drugs, because of force or duress, e.g., shotgun marriages, or because of fraud involving the essentials of marriage;
- a party is physically unable to consummate the marriage (have sexual intercourse) at the time of the marriage and the other party did not know of the incapacity;
- a party was16 or 17 years of age and did not have parental consent;
- the marriage is prohibited by another law(such as bigamy).
WARNING: Each of the above four grounds for invalidity of marriage has a different time limit (as in statute of limitations) in which a case must be filed.
When does the legal separation take place?
Contrary to what many seem to believe, a legal separation is not the first step of the divorce process. It is not something that is a routine part of divorce.
While many divorcing spouses do in fact separate before and after filing for divorce, this type of separation has no name. It is just a separation and should not be confused with a legal separation, which is its own type of case and really has very little to do with divorce. Click here for more on legal separation.
If a couple already agrees on everything, should they use mediation?
No. Mediation is for people that CANNOT reach an agreement and need help to resolve their differences. If you and your spouse have already agreed on everything, you do not need mediation because you have already achieved the best that mediation can give you. Rather than seeking a mediator, your best bet is to hire a lawyer to shepherd your case through the legal system.
What happens to my health insurance?
If you or your spouse is covered under the other's health insurance coverage, it will terminate upon entry of your divorce. This is required by the terms of the policy and is not pursuant to divorce law. You may obtain an extension of the coverage under COBRA (federal law) for up to 36 months, but it involves paying another premium, which is typically quite costly. Couples often negotiate who will be responsible for the premiums on this coverage.
Does it help to be the first to file?
The everyday, practical answer is NO. In the vast majority of cases, being the first to file for divorce is a technicality that is overrated and unnecessary. Beating your spouse to the courthouse does not provide the mystical or magical advantage that the public seems to suspect that it might. Judges, unlike juries, are not swayed by this. However, in a small number of divorces where the needs and circumstances warrant, filing first can bestow certain procedural benefits. In such instances, the benefits can be of immense value, so you should definitely check this with your lawyer. When in doubt, it does not hurt to play it safe and file first.
What's the deal on using one lawyer?
It is unethical for an attorney to represent or give legal advice to opposing parties, whether it is a friendly case or not. When we hear of parties "using the same attorney," the likelihood is that they are doing something different. There is a way for one lawyer to provide divorce legal services ethically in this circumstance. For more on this topic, click here.
Can I date before the divorce is final?
From a strictly legal standpoint, the answer is yes. The court cannot consider this fact when determining money and property issues. However, dating can harm the case from a negotiation standpoint. It is likely to reduce the chances of a smooth or early settlement because it typically brings added pain, hurt, or anger to the other party. It is wise to avoid any conduct that might cause complications.
Any sums spent while dating must be returned to the marital estate so your spouse can be reimbursed for his or her share of these expenses.
Does Illinois have any waiting periods?
No, not as such. Some states have cooling off periods or require divorcing spouses to wait a length of time before they can remarry, but Illinois has no such waiting requirements.
Can I ask for a jury trial?
No. Illinois outlawed jury trials in divorce in 1964.
What is arbitration and does Illinois allow its use in divorce?
Arbitration is a dispute resolution model where the parties hire a private judge (an arbitrator) to conduct a trial and make a final and binding decision in their dispute. Mediation works differently because mediators do not have the power to make such a decision. The mediator's role is to help the parties make their own decision. Illinois does not provide for arbitration in divorce cases at this time.
At what age can the kids choose who they want to live with?
The court will not consider the children's wishes until they are age 14 or older. However, the judge is not required to follow their preferences. What a child wants is only one of several criteria the court must consider.
Deciding custody is not a popularity contest and judges are aware that children in this age category are often prone to favor the parent that disciplines them the least.
It is true that no fault is quicker and cheaper?
No, it isn't. No fault divorce does not mean that you will have a no problem divorce. It just means that you won't be fighting about whose fault it is.
People often call and say they do not want to fight and ask for a no-fault divorce. This is another example of misinformation that the public has been led to believe. Even if the parties agree to use no fault, the fighting can still go on over the more significant issues such as, custody, visitation, support, and property division. No-fault is just one of eleven grounds for divorce in Illinois (see below), and 99% of the fighting in divorce is over issues other than grounds. In fact, some of the messiest divorces are no-fault.
Using no-fault is often the only thing that couples seem to agree upon, but it does not make their divorces any quicker or less expensive. There is no connection between using no-fault (irreconcilable differences) and the length or difficulty of your divorce.
Do we have to be separated six months before we can file?
No. You can file even if you haven't been separated for one minute. Illinois law does not require you to be separated before you can file for divorce. This is true no matter which of the eleven grounds is used.
If you opt to proceed on the ground of irreconcilable differences (no fault), you must establish that you have been separated for a certain length of time, but you don't have to accrue all or any of the separation time before filing. You can accumulate the required time after you file and while you are waiting in the court system. The law allows you to count all continuous separation time up to the time of your trial whether it occurred before or after filing.
Can a pregnant person get divorced before the baby is born?
No. The court can enter a divorce even when the mother is still pregnant, but it will reserve all issues pertaining to custody, visitation, parenting time, support, etc. until after the child is born. At the time of divorce, the husband is presumed to be the father of the unborn child unless the mother testifies otherwise.
Does child support include day care, extracurricular, or activity expenses?
No. These expenses are not included in child support payments. Any contributions toward these costs (e.g., school incidentals, hockey, soccer, karate lessons, music lessons, tutors, etc.) are in addition to child support.
Does the spouse that receives child support have to pay taxes on it?
Child support is not taxable to the recipient and is not deductible by the payor.
My spouse is telling me to move out. Do I have to?
No. You do not have to move out. Unless and until your spouse gets a court order granting him or her exclusive possession of the home, you have the same marital right to live in the house as they do. This is true even when title to the house is in your spouse's name only.
If I do move out, is it considered abandonment?
No. This is the mother of all myths. You do not lose any of your rightful percentage of the equity in the home if you choose to reside elsewhere.
Can I buy my own house before the divorce is final?
Yes. This is a common occurrence, but it can cause unnecessary complications if protective measures are not put in place prior to the purchase. The attorneys know what procedures and wording is necessary to prevent either party from getting hurt.
Does adultery affect who gets custody?
No. These are separate issues with no legal connection. If a person is unfaithful and treats his or her spouse poorly, it does not mean that he or she treats the children poorly. To suggest otherwise, would be to say that someone who is a good parent could never be guilty of cheating. Again, there is no automatic connection between being unfaithful and being able to parent one's children properly.
If we reach a settlement, do we still have to go to court?
Yes. The party that files for the divorce must be present in court. He or she must testify and offer proof of certain vital facts that are required by the Illinois Divorce Act. These include proof of the spouses' identities and residency, the date and place of the marriage, the names and ages of all children born or adopted, the terms of the parties' settlement agreement, the grounds for the divorce, and other fundamental information pertaining to the marriage.
The other spouse does not need to be present in court if he or she signs all of the papers beforehand. These hearings usually take 5 to 10 minutes.
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Richard and Kari are staunch advocates of the non-court approach to divorce, and are also active and seasoned litigators with over 60 years of combined trial experience in the Illinois divorce courts of Cook, DuPage, and Kane counties.