After a divorce, many people want a “fresh start,” and hope to find that by moving to another location. Sometimes, their move is prompted by a better job opportunity, a new significant other or family members, or better housing and school opportunities. Regardless of the reason, parents who share parenting time with their children cannot simply up and move. Rather, Illinois law requires that parents abide by certain rules and procedures for relocation with the children. 

Under Illinois law, the term “relocation” is defined as follows:

“(1) a change of residence from the child’s current primary residence located in the counties of Cook, DuPage, Kane, Lake, McHenry, or Will to a new residence within this State that is more than 25 miles from the child’s current residence, as measured by an internet mapping service;

Since 2019, Illinois has utilized an income shares model for calculating child support.  The income sharing model considers the combined net income of both of the parents and the number of children in calculating the amount of child support. Each parent is then required to pay a percentage of the total obligation that is proportionate to their percentage of the combined income.

Most of the time, the parent with the majority of parenting time, even if they earn more than the other parent, will receive child support payments. The amount of support, however, changes substantially in a shared parenting scenario where the minority parent has at least 146 days with the children during the year. In this situation, the amount of support substantially decreases as the number of overnights above 146 increases.

How does remarriage affect my child support payment?

Generally, when a party paying support remarries, his or her new spouse’s income will not change the amount of support due to the recipient parent. The same goes for the reverse situation: even if the recipient party remarries someone with a significant income, the obligor’s monthly child support will not decrease. The income of the obligor’s spouse is not factored into child support calculations because the new spouse has no legal obligation to financially support the obligor’s child. However, new spouse income can still be considered in the context of child support (and sometimes maintenance) modification proceedings or in rare instances the initial setting of support with unusual circumstances. Even though a new spouse doesn’t have any legal obligation for the support of his or her stepchildren, when one or both parties have since remarried or is living with someone in a committed long-term relationship, the income of the new spouse or cohabitant can be relevant.

One of the most commonly asked questions during a divorce is if you are required to live in the marital home with your spouse during the pending divorce case. The short answer is that it depends on the circumstances, and particularly whether there are minor children involved and any issues of support. Another commonly asked question is, “If I move out of the marital home, is it considered abandonment?” The answer to that question is also no as Illinois is a no-fault state that does not have grounds for divorce such as abandonment. However, there are some things to know about cohabitating with your current spouse during your divorce proceedings, how it can affect your children, and what you can do if things start to become contentious.

Some couples going through a divorce are amicable and are able to live under the same roof during divorce proceedings. Often times, couples will stay together in the marital home because they cannot afford to support two households or because they want to present as least disruption in their children’s lives as possible.  The courts generally prefer that the status quo is maintained during the pendency of the divorce, meaning that parties continue to operate their day to day living as they did prior to the filing.

However, sometimes that is not possible and couples cannot live together during a divorce case because their situation is so volatile that it negatively impacts their own or the children’s health and wellbeing. If this is the case, it’s best if the parties can agree that the arrangement is not ideal and determine a plan for parenting time for the children and how finances will be handled.  If, however, one spouse moves out of the marital home without an agreement on these issues, it can lead to litigation. In that case, the party remaining in the marital home would want to file a petition asking the court for temporary relief as it relates to support or household expenses. If the children have been removed from the home, the issue becomes even more imminent and the spouse who remains would likely file a petition asking the court to order the return of the children or at minimum to set a parenting schedule. Given that the court greatly prefers the status quo be maintained, it is not looked up favorably if one party unilaterally leaves the home with the children.

Interest on Divorce Judgments

The question of whether interest applies within the context of a domestic relations proceedings depends on the nature of the obligation—whether it be child support, maintenance, or a property obligation. The Illinois Code of Civil Procedure provides that judgments recovered in any court shall draw interest at the rate of nine percent per annum from the date of the judgment until satisfied. But does this apply to your divorce decree?

Interest on Child Support and Maintenance

While it wasn’t always the case, in 2000, Illinois clarified its legislation by requiring mandatory statutory interest on all missed child support payments. Specifically, the law states that a support obligation, or any portion of a support obligation, which becomes due and remains unpaid at the end of each month, shall accrue simple interest. Later, in 2006, this same principle became the law  for maintenance as well. The law provides that any maintenance obligation including any unallocated maintenance and child support obligation, or any portion of any support obligation, that becomes due and remains unpaid shall accrue simple interest. In other words, 9% interest is mandatory for unpaid child support and/or maintenance obligations.

When parties have a completely uncontested (agreed upon) divorce, our office McSwain Nagle Giese & Rapp, P.C. may handle those cases on a flat fee basis, where no hourly charges are incurred. Unfortunately, even in situations where spouses are somewhat amicable, it is often very difficult to reach an agreement without legal guidance and some negotiations or litigation, particularly if there are minor children involved or substantial assets. In those cases, it is necessary to hire an experienced divorce attorney who is going to get you the best possible outcome while being cognizant of the cost to you. 

Since every family’s circumstances are so different, it would be nearly impossible to predict the cost of a divorce, which is why most divorce attorneys bill at an hourly rate. Hourly rates can vary from firm to firm but typically are based upon the experience of the attorney and the reputation of the firm. Paralegals and law clerks bill at a lower hourly rate and therefore can be used as a cost-saving tool. In addition to paying an hourly rate, most reputable law firms will require a retainer fee, which is an upfront lump-sum payment in order to secure the attorney’s services for your case. The retainer is placed into the lawyer’s trust fund/IOLTA account (an account that holds money on behalf of clients) and when the lawyer generates an invoice, the retainer is applied to the amount owed prior to the client having to pay additional funds. Family law attorneys in Illinois are required to generate and tender fee statements at least every 90 days, however many law firms, including ours, issue them every month.  

In addition to attorney’s fees, there are also costs associated with the divorce that are not paid to the attorney. Basic examples include filing fees, service fees, subpoena fees, and costs associated with a deposition (court reporter and transcript). Other larger costs include the cost of mediation, a guardian ad litem, evaluator, or business valuation/accounting services. Since these fees are often also based upon hourly billing, they can be unpredictable and sometimes substantial.