dissolution

Dissolution of Marriage

PROCESS.

Whether you go forward with a legal separation or a dissolution, each begins with the filing of a lawsuit through a �Petition�. There is no advantage to either side for filing first. The Statute is applied the same to both sides.

If you are the Petitioner, we give you the option of having your spouse �served� by the Sheriff�s Department or having us send a letter to your spouse, with the Petition, asking for a response within ten days.

If you are a Respondent and have been served, don�t panic, you have at least twenty-eight days to hire an attorney to represent you.

The next step involves exchanging information through Asset Disclosures, providing each side with all of the information regarding monthly income and expenses and all assets and debts. Once each side has all the relevant information, a meaningful settlement offer can be proposed. In the event parties are unsure as to what the assets are, the Court provides for various discovery methods of obtaining all that is needed from the other side.

The process then largely is one of negotiation, using the Statute as a guideline as to what is fair and equitable.

Once an agreement is reached and all documents signed, the last step is called the �Prove-Up,� wherein the agreement is entered into the Court record and becomes final. If you�re lucky, that�s the only time you actually go to Court. Obviously, the more the parties fight, the more expensive the process.

AREAS OF CONCERN.
1. Domestic Violence.
If you are ever in fear and have ever been abused in any manner whatsoever, you must immediately call your local police. Never ever hesitate to do so. If a charge has been filed against your spouse by you for domestic battery or anything of that nature, you can also obtain and Order of Protection. These Orders remove one party from the marital residence, on a temporary basis, subject to a Court hearing. These Orders are also available to protect children from abuse by a parent. These types of incidents must be dealt with immediately.

2. Children.
Custody, visitation and child support are the three main issues regarding the children. The large majority of cases result in joint parenting, which basically means, the parents have the ability to cooperate for the benefit of their children. A �Joint Parenting Agreement� is created, detailing the collaborative arrangement. Basically the child lives with one parent (primary residential parent), and the other parent (non-residential parent) has substantial visitation specified. The typical visitation schedule involves one evening during the week (not overnight) and every other weekend. Also the holiday schedules and vacation schedules are set forth. The visitation schedule is similar for �sole custody� situations as well.

Child support is determined directly from the Statute pursuant to specific guidelines. For example the non-residential parent must pay twenty percent of his or her net income for one child, twenty-eight percent for two children, etc. Also determination must be made who provides medical insurance for the child, and how the uncovered medical expenses of the child is shared. For example, 50/50. Likewise, specifications are included regarding the extra-curricular and educational expenses of the child.

3. Assets.
Most people are surprised to learn the value of their �marital estate�. In general, your marital estate is anything you�ve acquired since the date you were married, regardless of whose name is on that asset. Of course there are some exceptions and exclusions. But typically that would include your house, any pensions earned during the marriage, any savings or anything of that nature, acquired since the date of marriage. Again, regardless of whose name is on it. The hardest thing for most people to swallow is that their pension is not �their� pension. But marriage is a legal contract and it is analyzed almost like a corporation, where the pension earned during its existence is an asset of that corporation. Once we have all the information relative to the values of all of the various assets, then distribution can be made. The Courts start out with distributing the assets equally. However, there are some factors that could alter that distribution. Negotiations take place over which assets each party will take for their one-half share.

4. Debts.
All present debts of the marriage must be allocated to one party or the other, and/or paid off by some other means, all of them must be specified in the document. Not all debts are allocated on a 50/50 basis. For example, if one spouse incurred a charge account expense for taking a vacation without the other spouse, the vacationing spouse would in all likelihood be allocated the debt for his/her vacation. But basically all debts must be accounted for in some fashion.

5. Maintenance.
Maintenance is the old �alimony�, support for one spouse from the other spouse. There are numerous factors in determining whether a spouse is a candidate for maintenance. But the two main factors are: disparity in income (what is the difference between the income of the spouses), and the length of the marriage. The greater the disparity in income and the longer the term of marriage, the greater the likelihood maintenance will be awarded. Maintenance, however, is not a percentage of income governed by guidelines in the Statute. Maintenance can take many forms: a monthly amount for a fixed amount of time, a permanent monthly amount, or a one-time lump sum payment. Also, in the alternative, a spouse eligible for maintenance can waive maintenance and instead take a greater share of the marital estate. In depth analysis of the income and expenses, as well as the nature of the assets and debts of the marital estate, is required.

6. Attorney�s Fees.
In order to hire an attorney it is necessary that you pay a retainer, a fixed up-front dollar amount, before proceeding. The retainer we require is based on the nature and complexity of your particular case, and ranges anywhere from $3,000 and up. We do not accept credit cards. We will send you a monthly statement showing you the status of your client fund account. Typically each party is response for payment of their own attorney�s fees and costs in connection with the dissolution, however there are some cases wherein one spouse is required to contribute to those fees and costs of the other spouse.

� 2007 Prendergast & DelPrincipe

All writing on this website is provided for generic informational purposes and should not be construed as legal advice of any nature. An attorney or other appropriate professional should always be consulted before making decisions that may affect ones personal, legal, or financial status.

PRENDERGAST & DELPRINCIPE

3540 W. 95th St. Evergreen Park, IL 60805 Ph: 708-424-7300 Fx: 708-424-8922