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Common Divorce and Custody Questions Answered – Part One

By Corri Fetman | January 31, 2023

The divorce process can be extremely overwhelming and confusing. Even though every case presents unique scenarios, there are still questions that most litigants want to know prior to moving forward.  This article will attempt to clarify some of the several common questions that often arise at the commencement of a divorce.

  1. How crucial is it to “file first” and does it mean I will gain an advantage in court?

In most circumstances, there is no advantage to one party filing first. Since both parties have the same rights and responsibilities in a divorce case, it will usually not matter.  However, that being said, in a potential county or state jurisdictional dispute, there may be an absolute benefit to being the party who files first. Therefore, it is always advantageous to schedule a consultation with an attorney before filing your case.

To find out more about your particular case, schedule a consultation with Corri Fetman & Associates, Ltd., by clicking here:


  1. Will I be awarded more money if my spouse engaged in marital misconduct?

With the rise of communication and “hook ups” by social media and dating websites, infidelity and affairs have been a common thread in divorce cases.  As a result, a recurrent question divorce attorneys are asked in consultations is whether marital misconduct, such as an extramarital affair, will result in a higher payout for the non-cheating spouse. The short answer is “probably not.”

The Illinois statute provides that the court is not supposed to consider marital misconduct when allocating marital property.  There is an exception to the statute. The court may assess an award against a party that dissipates marital assets. Dissipation is essentially one party’s use of marital funds for a non-marital purpose.  A common example of when one party spends marital property on a boyfriend or girlfriend by way of gifts, travel, or entertainment.


  1. Is marital property always divided 50/50?

Illinois courts are required to divide marital property, “equitably.”  An “equitable” division may be 50/50, but the very nature of the definition of “equitable”, does not mean “equal. The Illinois dissolution of marriage statute requires the court to consider several statutory factors, such as the length of the parties’ marriage; whether one of the parties will receive spousal support; whether one party has a large non-marital estate; and each party’s ability to acquire assets in the future through employment or other means. There are various arguments and exceptions where your attorney may be able to assert a reason to award one spouse a larger share of the marital estate. Therefore, it is imperative to consult with and hire an experienced family law attorney.


  1. Can the parent with the majority of the parenting time move out of state?

The Illinois divorce statute contains specific notification provisions for a parent’s relocation both within and outside of Illinois. If the parents do not agree, the parent wishing to relocate with the child or children outside of Illinois must file a petition with the court requesting permission to move. After discovery, expert evaluations and other necessary procedures, the court will rule at a trial/hearing on the petition under a “best interest of child” standard by taking into account a number of relevant factors.

Relocation cases can be complex and require the implementation of professional strategies. To find out more about your particular case, schedule a consultation with Corri Fetman & Associates, Ltd., by clicking here:


  1. Does joint custody mean the children spend equal time with each parent?

The term “custody” was removed from the Illinois divorce statute and replaced with the terms “parental decision-making responsibilities” and “parenting time.” Significant decision-making responsibilities refer to decisions relating to a child’s health, education, religion and extra-curricular activities.  Parenting time (formerly known as visitation) refers to the actual time the children spend with each parent.

By way of example, one parent could have sole significant decision-making responsibilities for the child (the parent who is in charge of the child’s medical, educational, religious and extracurricular decisions) while at the same time the child spends approximately 50/50 of the time with each parent.

As always, legal matters are fact-driven and based on the laws of each individual state. Because each case is different and requires distinct approaches, it is necessary to consult an attorney with respect to your own case in order to understand the implications of how the law interplays with your specific set of facts.  To find out more about your particular case, schedule a consultation with Corri Fetman & Associates, Ltd., by clicking here:

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