Do I need a Chicago divorce lawyer?

Most people don’t want to spend money on a Chicago divorce lawyer. I have one word for those people – sane!

Unfortunately, when seeking a divorce in Illinois (called a “dissolution of marriage”), when spouses try to handle a divorce on their own, mistakes happen, and time is wasted. I wrote this article to address some common questions about hiring a family law attorney in Illinois.

Do I need a lawyer for a divorce in Illinois?
No, you don’t need a lawyer. Likewise, when you are a passenger on a plane, you don’t need a pilot – but things might go a bit smoother a trained professional at the helm.

True, there is a lot of free information out there about how to get a divorce. Some services help you draft material you need to file for divorce. However, an Internet-based form will not answer anyone’s questions, should they arise.

I can tell you from experience that people often have misperceptions about the law of divorce in Illinois – most of which is in the Illinois Marriage and Dissolution of Marriage Act. For example, people often think because one one name is one a bank account, that bank account is absolutely the sole property of the spouse whose name is on it – but that’s not true.

The point is, if you are using a form to help you get divorced without a lawyer, you run the risk of making ill-informed decisions that could impact your life for years to come.

My husband/wife and I agree on everything, we don’t need a lawyer, do we?

Even when people agree, having a lawyer can have benefits for both. First, even if only one party has a lawyer, at least the settlement agreement will be written in a professional manner.

Further, unfortunately, sometimes people think that both spouses are in agreement – but they find out differently later. I cannot tell you home many times a client has said to me “We’re very amicable, I don’t think we’re going to need to worry about that issue,” then a couple months down the line, those same people are driving each other nuts with disagreement. A lawyer can help prevent problems.

It won’t take me too much time to get divorced in Illinois, will it?

It depends what you consider “too much time.” You will need to go to court to file papers, figure out how to draft agreements, and deal with court procedure. Then, you have to actually appear in court several times if you are trying to handle your divorce yourself. Maybe you don’t want to take off time for work? Maybe you don’t want to waste a lot of time with confusing legal forms? That’s another reasons to hire a lawyer.

After we get divorced, will we every have to come back to court?

It’s possible – especially when the divorce doe not appropriately wrap up all the loose ends. Here’s an example involving a house. During a marriage, the wife agreed to co-sign on the sister-in-law’s mortgage. The spouses drafted their own settlement agreement, which included a provision that stated the husband would indemnify the wife against any payments for his sister’s mortgage. However, since the agreement wasn’t professionally drafted, and the judge who approved it must not have read it, the wife (now ex-wife) had to hire me to clean up the mess. And frankly, at this point, it might be impossible to fix everything.

Long story short, prevent divorce deja vu – don’t try to go it alone and create the risk you will have to revisit the matter years later.

We want an uncontested divorce – can we use the same lawyer?

Some lawyers might agree to represent both parties. If you find one that will – run!

For an uncontested divorce in Illinois, many people want to have both spouses use the same lawyer. But if a lawyer does that, he or she cannot give any legal advice to either party – and that can be a problem. Instead, what I often do is represent the petition in an uncontested divorce (the petition is the person who files for divorce), and i draft all the agreements. Then, the other party (the respondent) can either choose to represent him/herself, or can hire a lawyer to simply review the documents and to appear when the divorce is finalized at the “prove up.” The advantage to this system is that the spouses to have to hire two lawyers to do duplicative and expensive work – the second lawyer’s job is potentially very light and relatively inexpensive.

We don’t have any assets, do we will need a lawyer?

Often people tell me they don’t have any assets, then it turns out they do. The following are examples of assets: checking account, savings account, CD, bonds, stocks, cars, electronics, art work, interests in businesses (even if currently in red), houses. There are few people getting divorced that truly don’t have any assets.

Also, assets are only one half of the marital financial pictures – there is also debt. Marital debt can be divided, just like an asset. Is there a car loan in both your names? That can be divided. Is there a mortgage in both your names? You’d probably want that divided.

By hiring an attorney, you can have a professional manage the process of divorce in Illinois. Otherwise, you risk not properly accounting for assets and debts. When that happens, you could have a nasty surprise years later.

We already divided our assets, so that part is done, right?

No. That’s because in Illinois, when people are married, unless there is a pre-nuptual or ante-nuptial agreement, ownership is not determined by title to any
given assets. Therefore, despite the fact that you think your assets are divided, they are not divided in the eyes of the court.

For example, a wife may have a bank account that is only titled to her – the husband’s name is not on it. However, because they are married, that bank accouwith the wife’s name on it is still considered marital property and subject to division upon divorce.

Can we just agree on child support and not put it in an order?

Yes, and no. Though there are statutory guidelines for child support, there can be deviations for certain reasons. However, people should know that judges do not have to approve of every marital settlement agreement before them – and most judges will not sign an MSA that omits mention of child support if support is an issue. Therefore, if you and your spouse want to deviate from the statutory support guidelines, that can be done with proper explanation. Further, with sufficient explanation, the court may approve an agreement that no child support will be paid.

What do we do with our house in a divorce?

With the housing market as it is, the marital home can be an impediment to a divorce. The easiest way to handle the home is to sell it prior to the divorce. However, it gets more complicated if the parties will remain joint owners of the home after divorce . If spouses will remain joint owners, there are several ways to do that: both move out of the home while it’s on the market, one lives in the home, both live in the home, both move out of the home while the home is rented.

See my article titled ” ” for more insight to dealing with a home during an Illinois divorce.

About the author: Contact Illinois family law attorney David Wolkowitz at 312-554-5433 or online. He is a family law and divorce attorney serving Chicago and the Counties of Cook, Champaign, DuPage, Kane, Kendall, Lake, McHenry, and Will. Areas of practice include divorce, uncontested divorce, child custody, visitation, spousal maintenance, child support, and the Uniform Child Custody Jurisdiction & Enforcement Act (the “UCCJEA”).