Frequently Asked Questions About Divorce

Q: What is a legal divorce?
A: A divorce is the dissolution of a marriage. After divorce, both parties are free to remarry. During typical divorce proceedings, the couple's assets and debts will be divided and the care and custody of any children will be determined. Each state has its own distinct divorce laws.

Q: What are "fault divorce" and "no-fault divorce"?
A: In the past, divorce generally had only been granted on the basis of marital misconduct called "fault": adultery, mental cruelty or another wrongful act. There were also defenses to these faults. In these divorces, the spouse at fault often received a smaller portion of the marital settlement. In a no-fault divorce, the parties merely need to state that the marriage has broken down irretrievably or that the couple has irreconcilable differences. In the U.S., New York is the only state that does not offer unilateral no-fault divorce, but among the other 49 states the particulars of no-fault laws can differ markedly from state to state.

Illinois Family Law Firm
The law office of Joseph P. McCaffery & Associates works to define non-marital assets from marital assets and protect the non-marital assets from division.

With more than 20 years of legal experience and vast resources devoted to representing divorce clients, Joseph P. McCaffery & Associates is led by a knowledgeable divorce attorney that is committed to his clients. The following information has been provided as an overview of divorce and non-community marital assets. For more information, or for experienced representation, contact this Aurora, Illinois divorce attorney. Joe and his team are aggressive Illinois lawyers that offer free initial consultations.

Divorce Overview - The Basics
Contemplating divorce is difficult. Whether or not you are sure you want to end your marriage, it helps to learn the basics of divorce law. Should you conclude that divorce is necessary, it is important to seek the assistance of an experienced family law attorney.

Grounds for Divorce
A divorce is a judicial decree by which a valid marriage is dissolved. From a legal standpoint, the divorce process will divide the couple’s assets and debts; determine the future care and custody of their children; and give each person the legal right to marry someone else. 

Every state has some form of "no-fault divorce," but the laws vary a great deal from state to state. Generally, a divorce will be granted if one spouse states that the marriage has irretrievably broken down or the couple has irreconcilable differences. (Other residency and filing requirements must also be met.) This is different from the past, when only "fault divorces" were available. In a fault divorce, one spouse must allege a martial wrong like adultery or abuse in order to receive a divorce. 

In some states, both fault and no-fault divorces are available. An experienced family law attorney can help you determine whether and how to pursue divorce.

Resolving Issues During Divorce 
Before a divorce may be granted, five basic issues typically must be resolved. They are:

• Alimony/spousal support
• Property and debt division
• Child custody
• Visitation/parenting time
• Child support

If the divorcing spouses can reach agreement on these issues, then the divorce is uncontested. If, however, the spouses cannot agree, the divorce is contested. The spouses may go to trial to resolve the issues. This usually means that a family court judge will make the final decisions. Alternatives to going to court include mediation, arbitration and collaborative divorce. Some courts may even order the spouses to attempt to resolve their differences through alternative dispute resolution:

Mediation. Mediation is an alternative to litigation that can be less expensive and less stressful for divorcing couples and their children. In the mediation process, the couple works with a trained mediator to reach agreement on contested issues. 

Arbitration. Arbitration is more like court than mediation, but it can still be quicker and less expensive. Instead of using a judge to decide the outcome, the parties agree to use an arbitrator. Each spouse will have a separate attorney who will represent each spouse’s interests. 

Collaborative Divorce. Collaborative law is a relatively new divorce process that requires an up-front commitment to resolving disputes by negotiation, compromise and agreement. If either side decides to go to court, both attorneys are disqualified from representing their clients in the courtroom. The spouses find new attorneys and go to court. 

Alimony, Spousal Support and Maintenance 
Alimony (also called spousal support or maintenance) is financial support that one spouse pays to another. The alimony can come in a lump sum, over a limited period of time or indefinitely. Because the laws vary from state to state, it is best to consult an attorney with questions about alimony. Factors that the court may consider in determining alimony include the length of the marriage and the ability of each spouse to earn a living. 

Division of Property in Non-Community Property States 
Courts in states that use the non-community property system typically make an equitable division of property between the divorcing spouses. Equitable means fair, rather than necessarily equal. The court makes the decision based on the circumstances of the divorce, the non-financial contributions to the marriage of each spouse and missed academic or career opportunities. 

What's Next? 
Making the decision to end a marriage is difficult. Even so, it is in your best interest to approach the divorce process from a rational, businesslike perspective. Working with experienced family law attorneys Joseph P. McCaffery & Associates will help you get through the process and begin your new life.

Joseph P. McCaffery & Associates
with offices in Aurora, Chicago and Lombard, Ill.
Office hours (weekday, evening and weekend) by appointment only
Phone: 630-801-8691  Fax: 801-806-8691  e-mail

Joseph P. McCaffery & Associates serves clients worldwide with interests in Illinois. 
The practice spans Northern Illinois including Chicago and surrounding suburbs such as Aurora, Naperville, Waukegan, Elgin, Joliet, Schaumburg, Rolling Meadows, Skokie, Arlington Heights, Palatine and Bolingbrook, and Central/Southern Illinois.

The firm serves clients before the Northern District U.S. Court and courts in Cook County and
the Collar Counties of Kane County, DuPage County, Lake County, McHenry County, Will County, DeKalb County and Kendall County, Illinois.