With so many attorneys in practice in the United States, it is important for potential clients to know how to weed out those who will fight for them from those who simply want to look busy. It can be very helpful to come into an attorney’s office with a list of questions to ask and to know which answers you want to hear. Divorce is one of the most stressful events most people will experience, and ensuring you have a quality attorney on your side can make an enormous difference. Some important questions to ask include:

#1. What Is Your Experience Level?

While some people think family law is a “safe” or easy discipline, it is in fact extraordinarily complex. In Illinois, it is arguably more so, as many rules and laws do not necessarily align with those of other states. It can be a game-changer—for the worse—if your attorney does not have significant family law experience, as regulations frequently change and the stakes in these cases tend to be very high. 

#2. Will You Handle My Case Personally?

It is sadly common for attorneys to bait and switch, highlighting the most experienced or reliable member of their firm to land a case, and then delegating most of the work to a junior associate or even a paralegal or other staffer without a law degree. If an attorney is evasive as to whether or not they will be personally handling your case, it is rarely a good sign. 

In the United States, every individual has the right to work with an attorney. For those who can not afford attorney fees, low-cost and even pro bono attorneys are available to represent their rights and interests in court. Despite the availability of low and no-cost divorce attorneys, some individuals still choose to represent themselves in court. These individuals are known as “pro se” litigants. Although you are certainly within your right to go to court as a pro se litigant, it is not in your best interest to do so. An experienced divorce attorney can explain all of your rights, your legal obligations, and the court processes that you will have to work through to you. Work with a divorce attorney to make the divorce process as smooth as possible.

You Do Not Know What to Say or How to Say It

Obviously, you need to tell the truth when you are under oath. You are under oath in all court hearings, depositions, and documents filed with the court. But when you are under oath, the statements that you make can sometimes be used against you. Your attorney can coach you about the difficult questions you might face and how to answer them without incriminating or misrepresenting yourself.

When a parent is not granted custody of his child, he is entitled to reasonable visitation rights, unless the court determines that visitation would seriously endanger the child’s physical, mental, moral or emotional health. Traditionally, “visitation” means in-person time spent between a parent and child, but it might also include electronic communication such as phone calls, email, or Skype.

Since the noncustodial parent is entitled to reasonable visitation rights, the court may not restrict those rights unless visitation endangers the child. However, the court may modify an order granting or denying visitation rights if that serves the best interests of the child. The court considers numerous factors when determining a child’s best interests. Those factors include:

• The wishes of the child;
• The relationship that the child has with the noncustodial parent;
• The mental and physical health of all involved parties;
• The presence or threat of physical violence;
• The occurrence of ongoing or repeated abuse by the parent, whether it is directed toward the child or another person; and
• Whether the parent is a sex offender.

Note that the court will not consider the parent’s conduct if it does not affect his relationship with the child. In fact, unless there is ongoing abuse, the court presumes that the maximum involvement and cooperation of both parents is in the child’s best interest.

Circumstances in Which Visitation May Not be Granted

Like a divorce, an annulment ends a marriage. But unlike a divorce, an annulment treats the marriage like it never happened, which may be important to you for religious or other personal reasons. There is a short time frame in which to secure an annulment, so if you are considering this option then you need to act quickly.

In Illinois, there are four circumstances in which a court will enter a judgment declaring the invalidity of a marriage (colloquially referred to as an annulment). Note that a different timeframe attaches to each circumstance.

1. A party lacked capacity to consent to the marriage when the marriage began. The inability to consent could stem from mental incapacity, infirmity or the influence of drugs or alcohol. Incapacity also exists if a party was induced to enter into the marriage by fraud, force or duress. Either party, or the legal representative of the party who lacked capacity, may petition for a declaration of invalidity. The petition must be filed within 90 days of the petitioner knowing about the described condition.
2. A party lacks the physical capacity to consummate the marriage, and when the marriage began the other party did not know of this incapacity. Either party may petition for a declaration of invalidity. The petition must be filed within one year of the petitioner learning of the physical incapacity.
3. A party was 16 or 17 years old and did not have consent from a parent/guardian or judicial approval. The underage party or his/her parent or guardian may petition for a declaration of invalidity. The petition must be filed before the party’s 18th birthday.
4. The marriage is prohibited. For example, you cannot marry someone if you are legally married to someone else. This is called a bigamous marriage, and it is illegal. In that case either party may petition for a declaration of invalidity, as can the legal spouse, the State’s Attorney, or a child of either party. The petition may be filed at any time, even post-mortem, although it must be filed within three years following the death of the first party who dies.

Children of an Invalid Marriage and the Putative Spouse

During a divorce, children of the marriage may be used as pawns between the warring factions. If the divorce is amicable, the parties can work together to find a just and harmonious resolution to the issue of child custody. If not, however, the the process of determining child custody can complicate divorce proceedings, and the best interest of the child may be thrown to the wayside. It takes the experienced negotiation skills of attorneys or the intervention of the courts to determine custody.

What to Consider

The Illinois Marriage and Dissolution of Marriage Act, found at 750 ILCS 5, sets forth the conditions for child custody proceedings. There are established rules for when a stepparent can file a petition for custody. There are even rules that set forth the circumstances under which a grandparent can petition for custody.