Family Law FAQs
Below are answers to some of the questions most frequently encountered by the family law attorneys at Johnson, Westra, Broecker, Whittaker & Newitt, P.C. as they advise and represent clients in divorce, child custody, and related family law matters in Carol Stream and surrounding areas. If you have other questions or need help with a divorce or other family law matter, contact our office to speak with one of our knowledgeable and experienced family law attorneys.
What is the difference between a divorce and an annulment?
A divorce is the process used to end or dissolve a legal marriage under Illinois law. An annulment is the legal cancellation of a marriage which was never valid to begin with. For instance, if the couple got married while one of the persons was drunk or drugged or otherwise lacked mental capacity, that marriage may be annulled. A marriage may also be invalid and void or voidable if one party was forced or tricked into marriage, if one party was underage and lacked parental consent, if one party was already married to another, or if the marriage cannot be physically consummated. In Illinois, an annulment is called a Declaration of Invalidity of Marriage.
What is the purpose of a legal separation?
A legal separation is an option for some couples who cannot divorce for religious or economic reasons, or because they do not yet meet the residency requirements to obtain a divorce in Illinois. Others may wish to live apart but may be holding out the hope of a reconciliation and are not ready to finally declare the marriage is over. Entering into a legal separation allows the parties to establish enforceable support and maintenance agreements. A legal separation helps the parties maintain peaceful relations and smooth the transition to either divorce or reconciliation in the future.
Can one spouse’s pension be divided between the parties in a divorce?
The value of a pension which accrued during the marriage may be marital property subject to the equitable distribution of property made by the court. If the fund is a defined benefit plan (such as a pension or retirement plan) or a defined contribution plan (such as a 401(k) or profit sharing plan), it may be necessary to obtain a Qualified Domestic Relations Order (QDRO) directing the plan administrator to transfer or release the funds. A portion of the pension may be marital property and a portion may be separate property, making this a complicated area of law.
Can I still access and use the joint bank account and credit cards while the divorce is pending?
Early in the divorce process, it is common for the judge to make temporary orders for child custody and support pending the final resolution of these issues in the final divorce decree. The judge may issue other orders related to the property and assets of the parties, generally meant to preserve the status quo while the divorce is pending. Even if not specifically prohibited by the court, you probably should not make any large purchases or sales or other big decisions without first consulting with your divorce attorney.
How can I ask for a prenuptial agreement without sending the wrong message?
A prenuptial agreement can benefit both parties who are entering into a marriage. The partner with higher income or assets can rest assured that he or she will not be taken advantage of in case of a divorce, while the other partner can take comfort knowing he or she will be properly taken care of if the marriage doesn’t work out. Addressing these issues at the outset may seem unromantic, but it allows the parties to enter into the marriage with security and peace of mind and focus on each other and the loving bond between them.
A prenuptial agreement can work for any couple, although it may be especially beneficial when there is a large income disparity or where one or both of the parties has been through a difficult divorce in the past. A prenuptial agreement should not be signed until both parties have had the agreement reviewed by an attorney.