Letisha Luecking, P.C.
236 East St. Louis Street
Nashville, IL 62263
Serving Washington and surrounding counties.
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9am to 4pm Monday through Friday
Mt. Vernon Office
Mt. Vernon, IL 62864
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Letisha Luecking is licensed to practice law in Illinois and Missouri only. She does not provide any legal advice to persons from other states or to anyone via the internet or telephone.
I NEED A DIVORCE, WHAT DO I DO?
The divorce process and contemplation of divorce is a very stressful and emotional time for everyone. All too often, people try to navigate these waters without representation. This is not a good idea. Anytime you are contemplating or even facing divorce, you should consult with an attorney, at a minimum. An attorney will be able to advise you of your options and your legal rights. This is extremely important especially in volatile divorce situations.
Typically, a divorce starts with the filing of a petition for dissolution. Typically, there are multiple issues to be decided within a divorce which are addressed by the petition: division of assets, property, and debts; maintenance; child support; and determination of parental responsibilities--decision making and parenting time. The parties may not be able to agree on these issues. If that is the case, then the matter will proceed to trial and a family court judge will make the final decisions. However, the parties may be able to discuss these issues themselves and come to a decision.
There are different resources available in order to assist parties in coming to a decision on matters on their own. Mediation is one of those methods. The parties meet with a trained mediator who will assist the parties come to an agreement on the issues. This method can greatly reduce the costs associated with divorce.
Another option available to parties is Collaborative Divorce. Collaborative law is relatively new and not always readily available everywhere. This method involves an up front commitment from both parties to settling the issues involved in divorce through negotiation, compromise, and agreement. Both parties still have a lawyer advising them, but there are mental health counselors, financial advisors, and other professionals involved in the process. In the event that the collaborative effort fails, both must hire new attorneys and then proceed to take the matter to trial.
No matter what direction someone decides to take with a divorce, it is important to approach the process in a calm fashion. This is why it is important to work with an experienced family law attorney who is able to stay focused on the issues and approach the matter in a calm, rational, and logical manner.
MY SPOUSE WANTS A DIVORCE AND I AGREE, DO I REALLY NEED A LAWYER?
In this situation, people often believe that they can use the same lawyer. This is not the case. One lawyer is not able to represent two opposing parties. One lawyer is able to draft all of the paperwork, but you should always have your own lawyer review the paperwork to be sure there everything is exactly as you want it.
Some people consider simply handling the divorce themselves. This will sometimes work. However, if there are children involved, it is a good idea to at least consult with an attorney. The attorney will be able to assist with considering many items regarding children that you might not be thinking of at this time. It is important to remember that an experienced family law attorney has dealt with many different issues regarding children that you may not think would ever come up in your situation.
HOW DOES THE PROCESS WORK AND HOW LONG WILL IT TAKE?
This is a difficult question to answer. The general process is easy to discuss but the timing is difficult. The general process is a petition for divorce is filed and the other party has 30 days to respond. Then, the response is filed. At that point, what happens next depends upon whether or not the parties are fighting. If the parties are in agreement, typically the final details negotiated and the paperwork can be draft fairly quickly. However, if the parties are not in agreement, the process will take longer. The parties will first have to go to mediation to attempt to determine parenting time issues on their own.
The parties will also have to request and answer discovery from each other. Those documents acquired in discovery will enable the attorneys to determine the financial situation of the parties and then decide on a settlement of financial issues. Answering discovery is time consuming and this is often problematic for the clients. It is extremely important that each party answers discovery in a timely fashion. If not, the party is at risk of being sanctioned by the court for not complying with court rules.
It is typical in a divorce that there is some sort of status every 30 to 45 days. These can be via telephone conference and/or in person appearance. This are quite normal and the required by the court so the Judge is able to keep tabs on his caseload and confirm that cases are moving forward. The attorney will keep the client posted as to these status hearings and the client generally does not have to attend. It is important to respond promptly to requests from your attorney in order to keep the case moving along.
What is also important to remember during this entire process is that the client is still in control. At any point, the parties may make an agreement on their own or even decide to get back together.
WHAT IS MEDIATION, WHY DO I HAVE TO GO, AND WHAT SHOULD I EXPECT?
Ultimately, the success of mediation depends upon the willingness of both parties to cooperate and put the child or children first.
WHAT ABOUT SOCIAL MEDIA DURING THE DIVORCE? SHOULD I DELETE MY ACCOUNTS?
Social media often plays a major role in divorce cases now. You should not delete any accounts because that could be considered destroying evidence. However, you can deactivate your accounts. Going forward you should not post or say anything on social media that you would not want the judge to see. The same goes for text and email messages. Chances are high that the judge will see some or all of these items if your case goes to trial.
HOW MUCH WILL i HAVE TO PAY IN CHILD SUPPORT?
There was a change in child support laws as of July 1, 2017. Answering this question is no longer as simple as it once was. Prior to this change, child support was a simple calculation. It was a percentage of the payor's net income. This calculation is now considered to be outdated as it does not accurately reflect the actual cost of raising children or the proper allocation of those costs between the parents. Typically, this method is perceived to be inaccurate and not equitable by the parties.
The new model for child support calculation is based upon real data that takes other factors into account other than just the income of one parent. The new model takes into account the actual child-rearing costs that are based in part on the Bureau of Labor Statistics. In order to answer this question now, an attorney needs to know both you and your spouse's gross income, costs of insurance for the child and who pays for that insurance, costs associated with extraordinary expenses for the child or children, and daycare costs. An attorney also needs to know how many nights the child or children spend with each parent as this is an important factor in the calculation of child support.
Once an attorney has all of this information, an attorney uses worksheets and tables created by The Illinois Department of Healthcare and Family Services (HFS). These worksheets enable the attorneys to calculate the amount of child support allocated to each parent. Based upon this, the payor parent is determined as well as the amount.
HOW DO I ESTABLISH RIGHTS TO MY CHILD?
The first thing to determine is whether or not your name is on the child's birth certificate. In order for your name to be on the birth certificate, you must sign the Voluntary Acknowledgment of Parentage--typically, when the child is born. If you did this, then establishing a parent/child relationship is a little easier. At this point, a petition to establish a parent/child relationship should be filed.
If your name is not on the child's birth certificate, you will still need to file a petition to establish a parent/child relationship. The process is much the same with the exception that you may have to prove parentage through DNA testing.
IS 50/50 CUSTODY POSSIBLE?
The courts look favorably on 50/50 parenting time and wants both parents to be involved with the child or children to the maximum extent possible.
WHAT IS A PARENTING ALLOCATION AND WHY DO I NEED IT?
The terms custody and visitation were deleted from the statute and replaced with an over concept of Parental Responsibilities. This is made up of Parental Decision Making (formerly known as custody) and Parenting Time (formerly known as visitation). A Parenting Allocation is a detailed document that lays out the responsibilities and rights of each parent. If you have children, you will be required by the court to file a Parenting Allocation Plan along with the other divorce documents.
WHAT IS PARENTAL DECISION MAKING AND PARENTING TIME?
Custody and visitation are no longer terms that are used in Illinois law. We now have "parental responsibilities" which consist of "parental decision-making" and "parenting time." Parental decision-making covers what was known as custody. This now consists of who makes the decisions regarding medical care, religion, school, and extra-curricular activities. Parenting time covers what was known as visitation. The court now presumes that both parties are fit and proper to jointly parent the child or children.
MY SPOUSE OFFERED TO GIVE ME TEH HOUSE IF I GIVE HIM HIS RETIREMENT ACCOUNT, WHAT DO I DO?
Parties should always consider their entire financial situation before making any agreements regarding the division of assets. Items to consider any type of retirement accounts, equity in a home and/or automobile, farm equipment, recreational vehicles, jewelry, guns, and anything else they own of significant value. Parties should also consider how liquid an asset is and when is the party able to convert that asset to cash.
AM I ENTITLED TO MAINTENANCE?
Determining whether or not one party is entitled to maintenance is complex. There are a series of factors that the court will consider including, but not limited to, educational background of the party, age of the parties, standard of living during the marriage, and length of the marriage. These factors must be met first in order for a judge to order maintenance.
MY SPOUSE IS INSISTING THAT I MOVE OUT OF THE MARITAL HOME. DO I HAVE TO LEAVE?
The marital home belongs to both parties. Neither party has to leave, but typically one party will vacate the marital home.
MY SPOUSE IS THREATENING TO HURT HIMSELF/HERSELF AND/OR ME AND/OR THE CHILDREN. WHAT DO I DO?
This is a very difficult situation to be in because you do not know for sure if your spouse is being truthful. You do not know whether to believe your spouse, but you are afraid to take a chance with the child/children. If there is a legitimate concern and you are in fear for the safety of yourself or your children, it might be wise to seek an Order of Protection. A good place to start is with this website: https://www.illinoislegalaid.org/legal-information/order-protection.
I THINK I NEED AN ORDER OF PROTECTION, WHAT DO I DO?
If you think you are in need of an Order of Protection you need to either contact a lawyer or the circuit clerk for your county. The circuit clerk may provide you with basic instructions and paper for filing the petition. You may also want to ask the circuit clerk for information regarding domestic violence organizations/counselors available in your county.
WHAT IS THE CHILDREN FIRST PROGRAM?
The Children First Program is required by Illinois Supreme Court Rule. This is a program for divorcing parents that addresses many family issues involved in the divorce. Please visit this website for further information regarding this program: http://children1stfoundation.org/.
MY CHILD/CHILDREN WANT TO LIVE WITH ME. CAN'T THEY JUST TELL THE JUDGE THAT?
A child does not get to decide where he or she lives until that child is 18 years old--until such time, the child/children are subject to the court's order. There is also no predetermined age at which children are allowed to speak with the judge. The judge will consider the age and maturity level of the child/children prior to deciding whether to talk to the child/children. This is not something that just happens either. One party has to make a motion and the other party has an opportunity to object. In the event the judge decides to speak with the child/children, each situation is handled differently according to the specific case and the specific judge.
WHAT DO I DO WHEN MY SPOUSE REFUSES TO FOLLOW THE COURT ORDER?
The type of court order will determine how to handle your spouse if your spouse refuses to follow the court order. If you have an order of protection and your spouse is refusing to comply with that order, then you must report that to the police. Your spouse will then be arrested and charged with the violation of the order of protection. Your spouse will have a criminal case against him/her.
If you have a civil order that your spouse is not following, such as the parenting allocation or the marital settlement agreement, then you would file a Rule to Show Cause with the court. This will force your spouse to come to court and explain why he/she is not obeying the court's order. The court will decide how to handle your spouse and the refusal to comply.