6. Temporary relief. John voluntarily left the marital residence within several days of the time he was served with summons. Mary asked her lawyer if John would have to leave the residence when he was served with summons. She was advised he would not have to, just as if John had filed for divorce against Mary, Mary would not have to leave the residence. John left without the children. They stayed with Mary. Mary has been the primary caretaking parent throughout the children’s lives. She was employed full time for four years between the births of her first and second child. She is now unemployed, to take care of the 18-month old child. John and Mary have been married for 13 years. John and Mary, when John left, did not have an agreement regarding John’s financial contribution to the family during the divorce proceedings, or as to the custody-visitation in regards to the children. Mary’s lawyer will prepare a petition for temporary support which will include Mary’s budget. For that hearing John will be required to produce his most recent paycheck stubs.
John decided not to seek custody, and John anticipated he and Mary could agree on the amount of visitation John would receive. The likely (usual) outcome of a hearing for temporary relief will be minimally that Mary will receive 32 percent of John’s net income for the support of the three children (25 percent for two and 20 percent for one child), plus, if Mary returns to full time employment, one-half of the daycare expenses. Permanent maintenance (as will be discussed later) for Mary is not a certainty. If, later, permanent maintenance is granted, between child support and maintenance the total award is not likely to be more than 45 percent of John’s net income, but during the pendency of the proceedings the judge may be concerned about the bills (mortgage, utilities, etc.) being paid, so the judge may, on a temporary basis, order John to pay even somewhat in excess of 50 percent of his net income to see to it that the bills are paid.
The usual temporary visitation schedule is alternating weekends, visitation one weekday every two weeks, usually “out for dinner” visitation and alternating legal holidays, including long weekends.
7. Temporary attorney fees. John is the only one in the family with a paycheck and if there are no funds available to Mary for payment of attorney fees, the judge is likely to order John to pay Mary’s temporary attorney fees so that she is on an equal footing with John for availability of attorney fees funds. Thus, for example, if John paid his attorney a retainer of $3,000, John may also be required to pay $3,000 to Mary’s lawyer.
8. Contested child custody. Let’s assume a different scenario in which John and Mary do not agree on custody and John also wants custody. Custody, both temporary and permanent, is decided on what is in the best interest of the children. The facts the court considers in regards to custody will be considered later, by the numbers. If at the temporary relief hearing the parties are not in agreement on custody, the court will determine this issue after hearing evidence.
9. Contested permanent custody. Contested custody litigation should be avoided if at all possible because (a) it will have a negative impact on the children, (b) it has an emotional toll on the parents, and (c) it is very expensive. Some lawyers liken the cost of contested custody litigation to the cost of a luxury car.
The likely steps to be taken in a contested custody case include the appointment of a lawyer for the children (for which the parties will have to pay) and a custody investigation or evaluation for which the parties will also have to pay. There will also most likely be depositions taken (see later in the numbers for discovery) of the parties, and possibly of others who may testify. The judge will then conduct a separate hearing on the issue of the custody of the children. This may last from one day to several weeks. (In McHenry County contested trials in domestic relations court are generally only in the afternoons.)
10. Discovery. The term “discovery” refers to the gathering of information on which to base settlement positions and to prepare for trial. This may include learning of such matters as income amounts, assets, pension plans, bank accounts and in contested custody cases, matters about the children. The discovery is carried out in three main ways: (a) written interrogatories, which are written questions the other side must answer under oath; (b) production of documents, which involves a request for the production of documents, such as income tax returns, brokerage account data, retirement plan documents, the financial books of a business, appraisals, etc.; and (c) discovery depositions. Mary’s attorney may require John to appear in Mary’s lawyer’s office where a court reporter will be present as will John’s attorney, and John will be asked questions under oath. The court reporter will take down everything that is said at the request of both lawyers. After the deposition the court reporter will type a transcript of what was said. Depositions may also be taken of other people who have knowledge of pertinent facts.
The last part in our series, on Friday, February 20, 2009, will deal with settlement.
For more information visit Gitlin, Busche & Stetler, Woodstock, Illinois lawyers website.
H. Joseph Gitlin covers the practice of family law in Illinois. Mr. Gitlin is the author of Gitlin on Divorce Reports, which summarize current Illinois opinions. Click here for Gitlin on Divorce Reports information or contact the office at (815) 338-0021. Mr. Gitlin's book, Gitlin on Divorce, A Guide to Illinois Matrimonial Law is a necessary tool for lawyers and legal assistants involved in family law and for judges hearing matrimonial cases
