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Divorce & Child Custody FAQ

1. How much will it cost?

Attorneys usually bill clients for the time spent working on your case based upon hourly rates which will be discussed with you at the time of your initial interview. Hourly rates vary greatly and depend on how long the attorney has practiced law and his or her perception of what is acceptable in their legal community for a person of their experience and knowledge. The reason why you are billed on an hourly basis is because the attorney simply does not know how much time will be spent on your matter to bring it to a conclusion; it could be a few hours of work or a great deal of time, even if the client believes the case to be a simple matter. At the time you retain the services of an attorney you will be asked for a retainer, which is an advance payment for present and future services. The amount of the retainer can vary greatly from one attorney to the next. Other expenses of litigation are fees usually paid to others such as the filing fee paid to the Clerk of the Court, court reporter fees, photocopying expenses, expert witness fees (usually where there are contested issues of custody, visitation or the valuation of businesses or assets). These other expenses can be relatively small (under $500.00) or, in the case of contested matters, many thousands of dollars.

2. How long will it take to conclude the divorce?

Your case will conclude with either a written settlement or, if the parties cannot reach an agreement on issues, the matter will proceed to trial where the judge will resolve the matter after hearing testimony and considering physical exhibits received into evidence. The great majority of cases conclude after the parties have reached an agreement which is reduced to writing in the form of a written document called a Marital Settlement Agreement. How long it takes to reach the agreement varies greatly. An agreement will sometimes be reached within a couple of months and, yet, other cases do not reach agreement until the day the case is scheduled to commence trial, which can be two years or more after the initial filing. A trial is usually scheduled after the parties cannot reach an agreement after a pre-trial conference with the judge who makes settlement recommendations which are not binding on the parties.

3. Will I have to pay alimony?

“Maintenance” is the term Illinois uses in place of the older term, “alimony.” Maintenance is financial support for your spouse. Historically, there were three kinds of maintenance in Illinois, that is: temporary maintenance (spousal support paid during the pendency of divorce proceedings), rehabilitative maintenance (spousal support paid for a period of time which can be for a period of months or a period of years), and permanent maintenance (spousal support that is indefinite and usually where there was a long term marriage and the spouse stayed home to raise the children). Whether or not you will have to pay maintenance or you can expect to receive maintenance simply depends on the particular facts of each case. However, as a general rule, if the spouse is young enough and is able to work and is able to be self- supporting, maintenance generally was not awarded. However, effective January 1, 2015, Section 504 of the Illinois Marriage and Dissolution of Marriage Act was amended to include a formula for determining maintenance awards. First, the court will determine if maintenance is appropriate in a particular case, which is determined by the court’s analysis of several factors which are enumerated in the statute. Then, if the court deems that maintenance is appropriate in a particular case, the court uses the formula set forth in the statute to determine the amount of monthly maintenance payments that will be made by the party who pays (i.e., “the payor”) and the duration of time (in years) that the party must pay the recipient part. Under the new law, if maintenance is appropriate and if the gross income of the parties is less than $250,000 annually (and if the payor has no obligation to pay child support or maintenance from a prior relationship), then the court will calculate the amount by subtracting 20% of the recipient’s gross income from 30% of the payor’s gross income, provided that the resulting sum does not exceed 40% of the parties’ total gross income when added to the recipient’s income. If it does, then under the formula, the payor will only pay that portion of his income which, when added to the recipient’s income, equals 40% of the parties’ total gross income. For example, if the paying party earns an annual gross income of $70,000, and the receiving party earns an annual gross income of $30,000, the court will subtract 20% of $30,000 ($6,000) from 30% of $70,000 ($21,000), to yield a maintenance award of $15,000. However, since a $15,000 maintenance award would exceed 40% of the parties’ combined gross income ($15,000 plus $30,000 = $45,000 which amounts to 45% of the parties’ combined gross income), the receiving party’s maintenance award would be capped at $10,000 per year (because $10,000 plus the recipient’s $30,000 equals 40% of the parties’ combined gross income). Ultimately, that $10,000 would divided by 12 to derive a monthly maintenance award of $833.33per month. It is important to note that the court has the discretion to deviate from the amount of maintenance that would be paid under the formula when the circumstances warrant such a deviation. In other words, when the court believes there are good reasons to do so, it can increase or decrease the amount of maintenance that would be paid if the formula were strictly applied. Next, the court will determine the duration of the payments according to another formula based upon the duration of the marriage in years. The court will multiply the number of years married by a factor set forth in the statute: for a marriage lasting 5 years or less, multiply the number of years by (0.20); for a marriage lasting more than 5 years but less than 10 years, multiply by (0.40); for a marriage lasting 10 years or more but less than 20 years, multiply by (0.60); and for marriages lasting more than 20 years, the court may, in its discretion, award permanent maintenance. Therefore, if maintenance is awarded under the formula above, and the parties were married for 5 years, then, the paying party would have to pay maintenance to the receiving party for 1 year (5 years x 0.20 = 1). If they were married for 15 years, the paying party would have to pay maintenance for 9 years.

4. What are custody and visitation?

Historically, Illinois law recognized only two types of legal custody, “sole custody” and “joint custody.” The term “custody” as used in family law refers to “legal custody” and usually means that there is a court order that states that a particular parent is the custodial parent. “Sole custody” is where one parent makes the major decisions affecting the life of the child relating to education, medical treatment, and religion, etc. “Joint custody” is where both parents, together (i.e., jointly), make major decisions affecting the life of the child. Historically, “joint custody” was only appropriate where the parties generally agree on major life decisions for the child and can get along and cooperate to make those decisions.

In addition to “custody,” the courts would also enter orders delineating “visitation” or “parenting time” to set forth a schedule which indicates when and how much time the minor child(ren) will spend with each parent. A traditional model (which in recent years has been used with decreasing frequency) would involve the child(ren) staying or visiting with the non-custodial parent–typically, but not always, the father–every other weekend overnight plus one night for a few hours after school every other week; and the custodial parent– typically, but not always, the mother–would have the child(ren) the rest of the time. Additionally, the parents typically alternate parenting time for holidays and birthdays. Of course, due to changes in society and differences in work schedules, the traditional model is not followed in all cases, and each parenting schedule is tailored to the needs of each individual family and whatever the court determines is in the best interests of the child(ren).

However, effective January 1, 2016, the law in Illinois regarding custody and visitation have changed significantly. In an effort to make domestic relations litigation involving children less acrimonious and litigious, now, the term “custody” is no longer recognized by the courts, and has been replaced with the concept of “allocation of parental responsibilities.” In other words, in the hope of making the process less of a fight with “winners” and “losers,” when parents with minor children get divorced, the courts will no longer use terms such as “sole custody” or “joint custody.” Instead, a parenting plan is implemented and an order is entered which delineates specific rights and responsibilities of each party with respect to the child(ren), and there is no designation of “custodial parent” (although a similar designation may be included in the order if, for example, the child’s school requires as much for enrollment). Nevertheless, in spite of the changes in terminology, the fundamental components of allocating parental rights and responsibilities are not altogether different than it was when the older terms involving custody and visitation were used. One or both parents will be designated as having certain decision-making authority with respect to the minor child(ren). Furthermore, the term “parenting time” has officially replaced the older term “visitation.” With respect to parenting time, the law generally presumes that it is in the best interests of the child(ren) to have the continued maximum involvement and cooperation of both parents unless it would seriously endanger the child(ren)’s physical, mental, moral or emotional health. In practical terms, this means that a parenting schedule will be implemented by agreement of the parties or as a result of a court hearing which determines what is in the best interests of the child(ren). Such a determination is made on a case-by-case basis and the courts will look to various factors enumerated in the statute, the Illinois Marriage and Dissolution of Marriage Act.

5. Can my or my spouse’s parenting time be restricted?

Generally, the law favors and encourages the maximum involvment and cooperation of both parents with respect to their minor child(ren). However, in circumstances where the parties’ child(ren) is subject to serious endangerment of their physical, emotional or moral health during parenting time with a parent, the court can restrict (or, in unusual cases, even suspend) that parent’s parenting time. This generally occurs when one parent physically or mentally/emotionally abuses the child(ren). It is very unusual for a court to suspend parenting time altogether. More common restrictions include imposing supervision of parenting time by a third party, prohibiting overnight stays with the parent, and/or requiring that parenting time take place at a public location. (Note that the term “restriction” is a legal term of art and does not generally include a decrease in the amount of parenting time; restrictions on parenting time is an issue which cannot be fully addressed in this FAQ; contact Bolon Law Offices to discuss the issue in greater detail).

6. What can I expect for child support?

The Illinois statute that deals with child support, sometimes referred to as “the guidelines,” provides that the obligor (the person paying child support) shall pay 20% of their net income for child support if there is one child; 28% of their net income for two children; 32% of their net income for three children; 40% of their net income for four children; and 50% of their net income for five or more children. It is discretionary with the judge to require the obligor to contribute additional funds for day care expenses, medical expenses not covered by insurance and extracurricular activities of the children; judges usually grant requests for payment of these expenses in amounts which depend upon the financial circumstances of the parties and the needs of the child(ren).

7. Will I have to sell my house?

The short answer is: maybe. Typically if one party wants the marital home and they can afford the expenses attendant with home ownership they will get the home by refinancing the mortgage and paying the spouse an equitable portion of the equity in the home. In some instances, usually the party that has custody of the children, they will be permitted to remain in the home until the children finish high school. Ordinarily, this requires the agreement of the other party. Otherwise, the house will have to be sold and the net proceeds shared by the parties.

8. Will I have to give my spouse part of my retirement funds?

Ordinarily contributions to retirement accounts or a pension during the time of the marriage will be divided. As a rule of thumb, the spouse will get 50% of the marital portion, which is that portion attributed to the contributions to the retirement account or pension during the time of the marriage. But, contributions made when the parties were not married will go to the party in whose name the account is held.

9. How will our assets be divided?

Usually, marital assets are divided equally. However, there may be many exceptions to an equal division of marital assets for a variety of reasons. For instance, a party that contributed non-marital funds toward the purchase of the marital home may seek to have a disproportionate share of the marital estate. Another example is where one party stayed home to raise the children and does not have the ability to generate sufficient income for self-support. Non-marital assets, which are those assets acquired by a party prior to the marriage or received by a party after the marriage by gift or inheritance, will be awarded to the party in whose name the assets are held.

10. Will I have to pay my spouse’s bills?

Indebtedness incurred during the marriage is usually considered marital debt and both parties may be responsible to repay the debt, even if the debt is incurred in the name of only one of the parties. Payment of the debt, including the payment of credit card debt, is usually a matter that is negotiated between the parties.

11. Can I change my name?

Yes. It is common for a wife to include in the judgement a provision that permits her to resume the use of her former name.

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