Glossary Of Terms In Illinois Divorce, Custody And Paternity Cases (Gitlin Law Firm)

Front 1

Affidavit

Back 1

Written testimony under oath - usually sworn to in front of a notary.

Front 2

Alimony / Maintenance

Back 2

Spousal support or compensatory spousal payments

Front 3

Alternative Dispute Resolution

Back 3

Ways for parties to a divorce case to resolve their disagreements without a trial. In Illinois the most common form of alternative dispute resolution is mediation — especially mediation in custody cases.

Front 4

Answer / Response

Back 4

A document used to answer or respond to the petition for dissolution of marriage or other pleading. Answers or responses usually admit or deny specific allegations or claims in the document being answered. In Illinois those allegations not specifically denied are therefore admitted. It is therefore only necessary to state the allegations which are denied.

Front 5

Appeal

Back 5

A procedure to ask a higher court (the appellate court) to review the ruling of a lower court (the trial court.) In divorce cases, generally only final orders can be appealed

The usual exceptions to this rule include contempt orders, injunctions, motions for summary judgment. In 2010 there were significant changes to the law regarding appeals in cases involving custody..

Front 6

Appearance

Back 6

Coming into court as a party to a case or voluntarily submitting to the power of a court. Usually this is not a physical act, but a lawyer filing a document.

Front 7

Arrearage

Back 7

The total amount of unpaid support obligations, including interest, as determined by the court and incorporated into an order for suppor

Front 8

Attorney (at Law)

Back 8

An advocate or counsel employed to prepare, manage and try cases in court. The Attorney Registration and Disciplinary Commission is an agency of the Illinois Supreme Court and is responsible for maintaining records of registration and discipline. The term lawyer and attorney are synonymous. Illinois lawyers are regulated by the Code of Professional Conduct while judges are regulated by the Code of Judicial Conduct.

Front 9

Attorney for the Child

Back 9

An attorney appointed to represent a child. This role differs substantially from that of a guardian ad litem. Since 2006, Illinois law has provides that, "The attorney shall provide independent legal counsel for the child and shall owe the same duties of undivided loyalty, confidentiality, and competent representation as are due an adult client. as an attorney to represent the child."

Front 10

Bankruptcy and Divorce

Back 10

The current law regarding Bankruptcy is called the Bankruptcy Abuse Prevention, Consumer Protection Act, 256 Title XV, Section 1501. This 2005 law has many implications for divorce cases. One of the key aspects of the definition of domestic support orders. For an overview of the effect of this law see:

The American Bankruptcy Institute: Major Consumer Bankruptcy Effects of 2005 Reform Legislation

Front 11

Bill of Particulars

Back 11

A provision under Illinois law which allows the Defendant to request from the other side (the Plaintiff) details as to the grounds alleged. Illinois law allows the Plaintiff to state grounds in a short-hand manner. Specifically, Illinois law provides, “The petitioner need only allege the name of the particular grounds relied upon.” However, according to Illinois law, “the respondent [Defendant] shall be entitled to demand a bill of particulars prior to trial setting forth the facts constituting the grounds, if he so chooses.” See 750 ILCS 5/402(a)(3).

Front 12

Child's Representative (Child Representative Under Current Legislation)

Back 12

Similar to a guardian ad litem. Illinois law most fully fleshes out the duties of a child representative. The law is at 750 ILCS 5/506. A 2003 Illinois' Second District appellate court case, IRMO Bates, addressed what has been the hybrid role of the child's representative. The Gitlin Law Firm had been critical of the Second District Bates decision. The Supreme Court in Bates reversed the appellate court as to the significant point, that is, the constitutionality of the provisions of §506(a)(3) of the IMDMA regarding the role of the child's representative. Section 506(a)(3) states: "The child's representative shall not be called as a witness regarding the issues set forth in this subsection." The Supreme Court concluded in Bates, "Section 506(a)(3) of the Act, as applied in this case, deprived Norma of procedural due process of law because her protected liberty interest in the care, custody, and control of her daughter was adversely affected by the statutory prohibition of calling the child's representative as a witness and cross-examining him. Nevertheless, in light of the overwhelming expert testimony supporting a modification of custody, and because the content of the representative's report was not inconsistent with the other evidence at trial, admission of the report was not prejudicial, and the error in failing to allow cross-examination was harmless."

Front 13

Child Specialist

Back 13

A child specialist is a member of the interdisciplinary team in a collaborative divorce process. During this process, the child specialist talks with the parents and meets with the child to assess the child's needs and concerns. The child specialist also assists the parents in recognizing and meeting the developmental needs of the child, while providing the child a voice in the divorce process. Unlike a custody evaluator, the child specialist does not make specific recommendations, but works with the coaches and the parents in helping to make informed decisions to help their child.

Front 14

Child Support

Back 14

Money paid by one parent to the other for the support of their children. Child support is generally not taxable to the recipient. Generally, maintenance (alimony), on the other hand, is taxable to the recipient. See 750 ILCS 5/505

Front 15

Coach

Back 15

A coach is the name of a person who is part of the collaborative law team. Different than therapy, coaching is more a consultation that has as its goals the reduction of the stress that accrues from divorce, helping the individual or couple (coaching can be done individually or together) to stay focused and less subject to the emotional roller-coaster that is typical in divorce, and building a post-divorce environment that is healthy and productive for the individuals and their children. The divorce coach will help the client navigate a collaborative divorce by providing educative information, positioning the client to meet the challenges of divorce more effectively, and providing the tools to accomplish a healthy divorce. To accomplish these things, the coach will:

help you understand what psychological stage of divorce you are at
identify the emotionally laden issues that are likely to trip you up
teach you strategies to avoid being derailed
help you be a better communicator
help you plan for your life as a newly single person.

Front 16

COBRA

Back 16

The Consolidated Omnibus Budget Reconciliation Act (COBRA) is a federal law providing covered dependents the right to continue group health coverage on a self-paid basis if eligibility for employer-sponsored group medical and dental insurance is lost through loss of employment or through divorce. COBRA eligibility is usually for 18 or 36 months after the event.

Front 17

Collaborative Practice (Collaborative Law or Collaborative Divorce)

Back 17

Ideally, collaborative practice allows the attorneys for both of the parties to assist the parties to resolve conflict using cooperative strategies rather than adversarial techniques and litigation. Collaborative law create a different paradigm in which the lawyers have a financial interest in resolving disputes without litigation rather than earning fees in part based upon the degree to which a case is litigated. In collaborative law cases, the parties and the lawyers sign an agreement which provides that if there is to be a contested motion or issue, both parties' attorneys must withdraw from the representation. I have found that the process works well depending upon the number of quality lawyers who handle collaborative law cases.

Front 18

Common Law Marriage

Back 18

A marriage without license or ceremony recognized by the law in the state it was created. Illinois does not recognize common law marriages.

Front 19

Consulting Expert (Consultant)

Back 19

A consultant is an individual who “has been retained or specially employed in anticipation of litigation or preparation for trial but who is not to be called at trial.” Illinois law provides that, “The identity, opinions, and work product of a consultant are discoverable only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject matter by other means.”

Front 20

Contribution Award (Petition for Contribution to Fees and Costs Incurred)

Back 20

An order requiring one party to pay the other party's attorney's fees which is entered at the conclusion of the case. A complicating factor in Illinois law regarding fee awards is the timing of such petitions. The statute provides, “After proofs have closed in the final hearing on all other issues between the parties (or in conjunction with the final hearing, if all parties so stipulate) and before judgment is entered, a party's petition for contribution to fees and costs incurred in the proceeding shall be heard and decided.” To over-simplify matters, an interim fee award is sought while the case is pending and the contribution award is sought at the conclusion of a case. See Gunnar J. Gitlin's outline regarding the Leveling the Playing Field statute regarding attorney fee awards in Illinois.

Front 21

Contempt of Court

Back 21

Failure to comply with a court order by a person who is able to comply. It also includes conduct in court which obstructs a court in the administration of justice. Illinois law divides contempt into civil contempt and criminal contempt. In civil contempt, an individual is said to have the keys to his own cell. This means that the goal in civil contempt is to coerce an individual to comply with a court order (and he or she must have the means to do so.) In criminal contempt, the goal is to punish an individual for his or her past-misconduct.

Front 22

Consuling

Back 22

Amendments to Section 608 of the Illinois Marriage and Dissolution of Marriage Act now provide for the authority of the court to order counseling. The legislation also provides for the confidentiality of communications within counseling sessions. It provides in part:

(c) The court may order individual counseling for the child, family counseling for one or more of the parties and the child, or parental education for one or more of the parties, when it finds one or more of the following: ***
(2) the court finds that the child's physical health is endangered or his or her emotional development is impaired including, but not limited to, a finding of visitation abuse as defined by Section 607.1; or
(3) the court finds that one or both of the parties have violated the joint parenting agreement with regard to conduct affecting or in the presence of the child.

(d) If the court finds that one or more of the parties has violated an order of the court with regards to custody, visitation, or joint parenting, the court shall assess the costs of counseling against the violating party or parties. Otherwise, the court may apportion the costs between the parties as appropriate.

Front 23

Counter-Petition

Back 23

A pleading filed by the Defendant also asking for a divorce (dissolution of marriage) or other relief filed in response to a Petition. A reason for filing a counter-petition is that the person who brings the divorce case has the right to voluntarily non-suit (dismiss the proceedings) at virtually any time prior to trial. However, a party cannot cause the entire case to be dismissed if the other side has filed a counter-petition for dissolution of marriage.

Front 24

Cross-Examination

Back 24

Asking questions of a witness who was put on the stand by the other lawyer. Cross-examination is usually intended to discredit the witness or weaken the effect of the testimony.

Front 25

Custody

Back 25

Usually refers to the parent's right to (1) have a child live with that parent and (2) make decisions concerning the child.

Front 26

Custody Evaluation

Back 26

In Illinois, before litigating custody issues, there is generally a court ordered custody evaluation. Custody evaluations are allowed according to three provisions of Illinois law:

- Court's Witness under Section 604(b);

- Evaluation of Child's Best Interest under 604.5; and

- Investigation and Report under §605.

See: 750 ILCS 5/604(b), 750 ILCS 5/604.5 and 750 ILCS 5/605. The custody evaluator is generally a mental health professional and generally either a psychologist or a licensed clinical social worker (although other mental health professionals will be assigned to render reports.) The testing process will generally include mental health testing and interviews with the parents and the child(ren). It will conclude with a written report.

Front 27

Department of Children and Family Services (DCFS)

Back 27

The department in Illinois responsible for reporting of child abuse or neglect. The DCFS initially determines in cases of suspected abuse or neglect whether a report is “indicated” or “unfounded.” An indicated report is one in which there is “credible evidence of the alleged abuse of neglect.” If DCFS determines "that no credible evidence of abuse or neglect exists," the report is deemed "unfounded." 325 ILCS 5/3. However, the credible evidence standard was determined to be unconstitutional. If there is an “indicated” report, an individual has a right to a hearing to determine if by a preponderance of the evidence it is likely that abuse or neglect occurred. See IRMO Cavarretta, 277 Ill.App.3d 16, 214 Ill.Dec. 59, 660 N.E.2d 250 (2d Dist. 1996), which held that, “After weighing all of the relevant factors, we determine that the "credible evidence" standard deprives a subject of due process. (Citation omitted.) Because an "indicated" on the State register may deprive one of his right to work in his chosen profession and cause great damage to his reputation, DCFS should at least be required to prove its case by a preponderance of the evidence.”

Front 28

Default

Back 28

Failure to do something or to do it on time.

Front 29

Defendant

Back 29

The husband or wife who is sued for divorce. Cook County, Illinois requires the use of the word Respondent rather than Defendant. However, this can be confusing at times because lawyers often speak of the Respondent as the person who is responding to a given pleading (instead of merely being the respondent to the underlying petition for dissolution of marriage.)

Front 30

Defined Benefit Plan

Back 30

A type of qualified annuity: It is often called a pension plan and the employee will receive an annuity at retirement, that is, as a general rule he will receive monthly payments for the duration of his life although there may be several other payment options. Such payment options may include a 10 year certain option. Generally, there are no account balances for defined benefit plans.

Front 31

Defined Contribution Plan

Back 31

A WYSWYG (What You See is What You Get) type plan. In a defined contribution plan there is an individual account for each employee. The value of the retirement benefit is the account balance.

Front 32

Delinquency in Child Support

Back 32

A delinquency in support is defined by the Illinois Income Withholding for Support Act as the, "any payment, including a payment of interest, under an order for support which becomes due and remains unpaid after entry of the order for support." Accordingly, a delinquency is simply the amount not paid while an arrearage refers to the court's determination.

Front 33

Deposition

Back 33

Testimony under oath taken before a court reporter but not in court. Generally, this is a discovery method. However, in certain cases Illinois law allows the use of what is called an “evidence deposition.” Generally, depositions in Illinois can be no more than three hours in length.

Front 34

Direct Examination

Back 34

Asking questions of a witness by the lawyer who called the witness.

Front 35

Discovery

Back 35

Procedures used to learn facts necessary to settle a case or prepare it for trial. The usual discovery vehicles are: 1) notices to produce (directed to a party); 2) subpoenas for deposition or production of records (directed to a non-party); 3) party depositions; and 4) interrogatories (usually directed to a party). See: Interrogatories; Request for Production; Deposition, Subpoena.

Front 36

Dissipation

Back 36

he use of marital property or funds for the benefit of one spouse for a purpose unrelated to the marriage at a time that the marriage is undergoing an irreconcilable breakdown. In Illinois if there is a claim of dissipation, generally the spouse who is charged with dissipation has to show how he or she spent such funds, that is, demonstrate that the funds were spent for a marital purpose. A key limitation is that dissipation can only be reimbursed to the marital estate if it is at a time frame when the marriage is undergoing an irreconcilable breakdown.

Front 37

Dissolution of Marriage

Back 37

Divorce. The legal process of ending a marriage. Most states, including Illinois, no longer use the word divorce. However, lawyers and clients still use the term divorce because it is simpler than the longer term “dissolution of marriage.”

Front 38

Domestic Violence

Back 38

Conduct against another member of a family which can include beatings, threats, stalking or other forms of intimidation, harassment, neglect, and physical, emotional, and sexual abuse. May include any act by one member of a family that causes one of its members physical or emotional harm.

Front 39

Eavesdropping

Back 39

A criminal act both according to Illinois and Federal law. The Illinois anti-eavesdropping statute is at 720 ILCS 5/14-1. The Illinois statute provides in pertinent part that "[A] person commits eavesdropping when he . . . [u]ses an eavesdropping device to hear or record all or any part of any conversation unless he does so . . . with the consent of all of the parties to such conversation." 720 ILCS 5/14-2(a)(1). Eavesdropping in Illinois is a Class 4 felony. In Illinois the legislation in this regard was amended in 1994 adding 720 ILCS 5/14--1(d). This statute defines "conversation" as "any oral communication between two or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation." Therefore, a party's expectation of privacy in Illinois is not generally relevant. As to the issue of whether there is a conversation, see IRMO Almquist.

An expansive case regarding eavesdropping was the Washington Supreme Court case of State v. Christensen, (2004). In this case the mother secretly used the speakerphone feature of the base unit of a cordless telephone to listen to her daughter's conversation with a robbery suspect. The high court ruled that the mother improperly used a device "designed to record and/or transmit" to intercept a "private communication." Washington's law required the consent of all the parties to a conversation and does not allow an exception for parents' monitoring their minor children's conversations. While this was a criminal case its potential impact in non-criminal settings is significant.

The Federal counterpart is based upon the wiretapping provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Sections 2510-22. The Federal law prohibits "any person" from making recordings of private conversations in which no party consents and authorizes any person whose conversations are recorded to recover damages. Case law including Simpson v. Simpson, 490 F. 2d 803 (5th Cir. 1974) had held that the statute did not apply if the "any persons" were spouses of each other, the conversations that are covertly recorded occur over the telephone in the marital residence and the recording was accomplished without the assistance of an outside party. However, a majority of the cases which have addressed this issue have disagreed with Simpson. For case reflective of the majority viewpoint and discussing this Federal law see, Glazner v. Glazner, 321 F3d 1336 (11th Cir. 2003).

Front 40

Equitable Distribution (Division)

Back 40

A system of dividing property owned by parties to a divorce. Illinois is an equitable distribution state. Under Illinois law an equal division of property is not required. Equitable may be equal but more often the assets are weighed in favor of the party who has given up career opportunities for the sake of the marriage, who has raised the children, or who has a lesser career potential as compared to her (or his) spouse.

Front 41

Evidence

Back 41

Proof presented at a hearing, including testimony, documents or objects.

Front 42

Exclusive Possession of the Marital Residence

Back 42

Illinois law provides that a party can seek exclusive possession of the marital residence. The standard is that such orders are to be entered “only in cases where the physical or mental well being of either spouse or their children is jeopardized by occupancy of the marital residence by both spouses.”

Front 43

Exhibits

Back 43

Tangible things presented at trial as evidence.

Front 44

Ex-Parte

Back 44

Any application to a court for relief made when only one side is present and in certain instances without formal notice.

Front 45

Fees

Back 45

A lawyer's charges paid by a client for legal services rendered to the client.
Back to top
1. Hourly fee: A fee based on the time expended and an hourly rate.
2. Retainer: Money paid by the client to the lawyer to obtain a commitment from the lawyer to handle the client's case. In divorce cases, a retainer is generally a deposit against which the lawyer charges fees as they are earned. According to legislation that was called the “Leveling the Playing Field” statute, a lawyer's fee contract cannot require a non-refundable retainer fee. The lawyer must remit back any overpayment at the end of the representation.

This is a fee that is sometimes charged by a lawyer for the agreement to take your case and to commit to being available for your case. Normally, an engagement fee is in addition to charges on an hourly rate basis.
3. Contingency Fee: A percentage of the recovery. Contingent fees are forbidden in divorce cases, but, in Illinois a lawyer is permitted to enter into a contingent fee to enforce a judgment, that is, for collection purposes.
4. Bonus Fee: A fee based upon factors in addition to the hourly fee. Also called a premium or final fee.
5. Flat Fee: A fee in a fixed amount for handling an entire case or a certain part of it. In divorce cases, there can be flat-fees for a pre-agreed divorce, that is, simple non-contested divorce. Otherwise, flat fees are rare.

Front 46

File

Back 46

In Illinois, generally the act of filing a petition, motion, etc., with the clerk of the court. Term also used as the act of starting a case.

Front 47

Financial Specialist

Back 47

The financial specialist is a neutral financial professional whose services are often used in a collaborative divorce. If used as part of the collaborative practice team, the neutral financial specialist then meets with the divorcing couple and helps them begin their dialogue around financial issues, while assisting them in gathering all the necessary financial information. The financial specialist works closely with the couple and their respective lawyers in understanding both present and future financial consequences of various possible settlement options. Often this information is presented in a five-way meeting with the financial specialist, the two collaborative lawyers, and the couple where the options are discussed. Then the couple, along with their attorneys, crafts their financial settlement.

Front 48

Garnish

Back 48

To take money from wages or from an account to satisfy an unpaid court order for the payment of money.

Front 49

Goodwill

Back 49

Illinois divides the goodwill of a business into two types: enterprise goodwill and personal goodwill. For a detailed discussion of business valuation topics and the distinction Illinois follows as to enterprise versus personal goodwill see a chapter I co-authored for IICLE on business valuation. If we over-simplify matters, however, personal goodwill cannot be valued in Illinois divorces. Personal goodwill is the portion of goodwill which is based upon the personal efforts of the spouse who owns the business. Enterprise goodwill can be valued. It is the value of business itself, assuming that you could replace the business owner with another person and pay him or her a reasonable salary.

Front 50

Grounds

Back 50

The conduct or circumstances which must be proved to entitle a person to a divorce.

Front 51

Guardian-ad-Litem

Back 51

A person appointed by a judge to prosecute or defend a case for a person legally unable to do so, such as a minor child. In Illinois there are three types of individuals who may be appointed with respect to minor children. In addition to a guardian ad litem, they are an attorney for the child and a child representative. See child representative and attorney for the child. The 2005 amendments to Section 506 of the IMDMA provides, "The guardian ad litem may be called as a witness for purposes of cross-examination regarding the guardian ad litem's report or recommendations. The guardian ad litem shall investigate the facts of the case and interview the child and the parties."

Front 52

Hague Convention on the Civil Aspects of Child Abduction

Back 52

The Hague Convention on the Civil Aspects of Child Abduction in family law circles is commonly referred to as the Hague Convention although there are many Hague Conventions.

Front 53

Hearing

Back 53

Any proceeding before a judicial officer.

Front 54

Hearsay

Back 54

The standard definition lawyers use for hearsay is an out of court statement asked to be introduced into evidence for the truth of the thing that is asserted. A non-legal definition of hearsay is testimony based upon rumor — what someone else says who is not in court — when you are asking the court to consider the rumor testimony based upon its truth. The most common exception to the hearsay rule is an admission of a party opponent. Generally, what the other party says is admissible as an exception to the hearsay rule. The second most common exception to the hearsay rule is the business record exception but even this exception requires certain background (foundation). Not all business records are admissible. Only those records where you can show that they were made in the regular course of the business and where the the person who is testifying at least has knowledge of the record keeping system. See evidentiary outline regarding Illinois law.

Front 55

Income Withholding Notice / Order

Back 55

An income withholding notice differs from an income withholding order in that a notice provides for withholding of income to secure payment of child support / maintenance or certain other expenses such as payment of health care premiums. An order for income withholding is entered by the court. In Illinois if there is an income withholding notice, generally payments are made through the State Disbursement Unit.

Front 56

In Chambers (In Camera) Interview with the Child

Back 56

If there is testimony by a minor child, Illinois custody law provides that this is not accomplished in open court but in the judges office (chambers). Illinois law provides, “The court may interview the child in chambers to ascertain the child's wishes as to his custodian and as to visitation. Counsel shall be present at the interview unless otherwise agreed upon by the parties. The court shall cause a court reporter to be present who shall make a complete record of the interview instantaneously to be part of the record in the case.”

Front 57

Injunction

Back 57

A court order which requires a party to do some act or prohibits a party from doing some act. Injunctions can be entered on an emergency basis (sometimes without notice). In order to obtain injunctive relief, Illinois law requires that there be a clearly ascertainable right in need of protection, that there be an irreparable injury or loss; that there is no adequate remedy at law; that there be a likelihood of success on the merits and that bond be waived (in appropriate cases). Injunctions can be mutual but mutual injunctions are usually entered by agreement of the parties.

Front 58

Interim Fee Petition

Back 58

A petition in which one spouse seeks a court order for the other spouse to pay attorney's fees on a temporary basis (while the case is pending). The goal of Illinois law regarding interim (temporary) attorney's fees is “to achieve substantial parity in parties' access to funds for litigation costs.” 750 ILCS 5/102(5). Hearings on interim fee awards are generally supposed to be based upon the affidavits of the parties. The key provision of Illinois law in this regard states that the court, “shall assess an interim award against an opposing party in an amount necessary to enable the petitioning party to participate adequately in the litigation, upon findings that the party from whom attorney's fees and costs are sought has the financial ability to pay reasonable amounts and that the party seeking attorney's fees and costs lacks sufficient access to assets or income to pay reasonable amounts... Except for good cause shown, an interim award shall not be less than payments made or reasonably expected to be made to the counsel for the other party.”

Front 59

Interrogatories

Back 59

Written questions served on the other party who is required to serve sworn written answers within a specified time. A type of discovery. Illinois has standard interrogatories to be used in initial dissolution of marriage proceedings. These interrogatories were changed effective July 2002.

Front 60

Joint Custody

Back 60

Illinois law does not provide that joint custody means that there is any given time sharing arrangement with the child or children. Illinois statutory law defines joint custody simply as custody “determined pursuant to a Joint Parenting Agreement or a Joint Parenting Order.” A Joint Parenting Agreement is merely an agreement which, “shall specify each parent's powers, rights and responsibilities for the personal care of the child and for major decisions such as education, health care, and religious training.” The only other requirement of a joint parenting agreement is that it must, “further specify a procedure by which proposed changes, disputes and alleged breaches may be mediated or otherwise resolved and shall provide for a periodic review of its terms by the parents.” The last procedure is usually done through requiring mediation in the event of disputes of the terms and by requiring an annual “review” of the joint parenting agreement. Illinois statutory law also provides that if the parents “fail to produce a Joint Parenting Agreement, the court may enter an appropriate Joint Parenting Order ... which shall specify and contain the same elements as a Joint Parenting Agreement, or it may award sole custody.” See, 750 ILCS 5/602.1

Front 61

Judgment

Back 61

The decision of a court. A type of order. Also called a decree.

Front 62

Jurisdiction

Back 62

The power of a court to decide a particular matter.

Front 63

Legal Separation

Back 63

A court order or, in some jurisdictions, a written agreement between the parties, arranging the terms under which the parties will live apart after separating. While signifying the separation of the parties, it does not formally dissolve the marriage or permit the parties legally to marry other persons.

Front 64

Leveling the Playing Field Amendments

Back 64

Illinois law regarding attorney's fees contains a group of statutory provisions which have been collectively referred to as the “Leveling of the Playing Field Amendments” to the statutory law. See my Q&A regarding Attorney's Fees in Illinois Divorce Cases: http://www.gitlinlawfirm.com/qa/fees.htm

See also my outline of my most recent seminar on the Leveling the Playing Field legislation in Illinois family law cases:

Front 65

Legislation

Back 65

All of the proceedings that take place in the course of a lawsuit.

Front 66

Maintenance

Back 66

Payments made to support a current or former spouse. In Illinois, alimony is called Maintenance. In other states, it is often called spousal support. See 750 ILCS 5/504.

Front 67

Marital Property

Back 67

Interests in property acquired by the spouses during the marriage which is to be divided between the parties at divorce. See Non-Marital Property, Equitable Distribution. See 750 ILCS 5/503.

Front 68

Marital Settlement Agreement

Back 68

The written agreement made between the parties settling the issues in a divorce. Divorce lawyers in Illinois often refer to the Marital Settlement Agreement as the “MSA.”

Front 69

Mediation

Back 69

A dispute resolution process in which a disinterested third party, the mediator, assists the parties in reaching an agreement. Except for very limited exceptions, the mediation process is confidential. The 2006 Supreme Court rules (effective July 1, 2006) have a provision for mandatory mediation of custody and visitation disputes (but not of financial matters ancillary to the parenting issues). See Gunnar Gitlin's Q&A regarding mediation of custody issues in Illinois family law cases,

Front 70

Mental Cruelty

Back 70

A ground for dissolution of marriage in Illinois. Technically, the full name of the ground is “without cause or justification ... Respondent ... has been guilty of extreme and repeated physical or mental cruelty.” In cases where the parties have not lived separately for the required period, often grounds will be alleged alternatively as irreconcilable differences or mental cruelty.

Front 71

Motion

Back 71

An application to the court for an order. Generally, motions are written but occasionally there are oral motions.

Front 72

Modification

Back 72

A change in the judgment or order, generally based on a substantial change of circumstances. The standard petitions for modification are those brought to modify custody and to modify either child support or maintenance

Front 73

No-Fault Divorce

Back 73

Also called “irreconcilable differences.” A divorce granted without proving that one party is guilty of misconduct. Illinois is not a “pure” no fault state. This is because in Illinois there is a waiting period. The waiting period is six months if there is an agreement (stipulation) to be divorced using no fault as a grounds. If there is no agreement, the waiting period under Illinois law is two years. Apart from the period of separation, the legal standards for no fault divorce is that “irreconcilable differences have caused the irretrievable breakdown of the marriage and the court determines that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family.” See, 750 ILCS 5/401.

Front 74

Non-Marital Property

Back 74

Property which is not marital in character. To clarify this circular definition, Illinois divorce law defines marital property as all property acquired during the marriage with certain exceptions. Non-marital property is defined as:

(1) property acquired by gift, legacy or descent;

(2) property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent;

(3) property acquired by a spouse after a judgment of legal separation;

(4) property excluded by valid agreement of the parties;

(5) any judgment or property obtained by judgment awarded to a spouse from the other spouse;

(6) property acquired before the marriage;

(7) the increase in value of property acquired by a method listed in paragraphs (1) through (6) of this subsection, irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effort of a spouse, or otherwise, subject to the right of reimbursement provided in subsection (c) of this Section; and

(8) income from property acquired by a method listed in paragraphs (1) through (7) of this subsection if the income is not attributable to the personal effort of a spouse.
See, 750 ILCS 5/503.

Front 75

Order

Back 75

A ruling by the court.

Front 76

Orders of Protection

Back 76

An order entered under the Illinois Domestic Violence Act. There are generally three types of orders of protection: emergency (not longer than 21 days); interim (not longer than 30 days) and plenary (often throughout the duration of the divorce proceedings).

Front 77

Parentage (Parenting)

Back 77

Illinois uses the term parentage rather than the term paternity. However, most Illinois family lawyers still use the term paternity. Illinois paternity proceedings are regulated by the Illinois Parentage Act of 1984.

Front 78

Parenting Education

Back 78

A term defined in the 2006 Illinois Supreme Court Rules. The rules require each circuit court to create or approve a parenting education program at least four hours long covering the subjects of visitation and custody and their impact on children. Except for good cause shown attendance is mandatory as soon as possible , but not later than 60 days after an initial case management conference. The Supreme Court Rules provide: "The court shall not excuse attendance unless the reason is documented in the record and a finding is made that excusing one or both parents from attendance is in the best interests of the child."

Front 79

Parenting Time

Back 79

The term used in many joint parenting agreements used to refer to the “visitation” rights of the non-custodial parent. Many people do not look on the term “visitation” favorably. The thought is that parents do not “visit” with their children. The non-residential parent may spend less time with his or her children but that time should not be thought of as “visiting” time. For this reason, many joint parenting agreements prefer the use of the term “parenting time.”

Front 80

Perjury

Back 80

The crime of lying under oath. It includes lying during a trial, at a deposition, or in a written affidavit. It can be punishable by imprisonment, although divorce lawyers know that perjury is generally difficult to prove in many issues involving divorce proceedings. Divorce lawyers refer to this as the “he said -she said” problem.

Front 81

Petition for Dissolution of Marriage

Back 81

Also referred to as a petition for divorce. This is the initial filing in divorce proceedings. A summons for dissolution of marriage will generally accompany the petition for dissolution when the petition is being formally served. In many cases, the petition for divorce is not formally served but a copy will be mailed to the Defendant's retained counsel who will then voluntarily file an appearance — thereby eliminating the necessity of formal service of petition for dissolution of marriage.

Front 82

Petitioner (Plaintiff)

Back 82

See Plaintiff. Cook County requires the use of the terminology “Petitioner” for the Plaintiff. The party who filed the Petition for Dissolution of Marriage. See Petitioner.

Front 83

Pleading

Back 83

A document filed with the court which asks for something or responds to a pleading filed by the other party.

Front 84

Praecipe Summons Procedure

Back 84

Illinois law allows a party to initiate divorce proceedings under what is called a praecipe summons procedure. Under Illinois law a praecipe for summons can be filed without a divorce petition. The reason this tool is used by some Illinois divorce lawyers (including me) is in cases where it is important to commence a divorce case quickly which is often done in order to establish venue where there are two places where the divorce case may be brought. Another reason this tool is used is to avoid having to allege grounds which may be contentious in cases where there are not grounds for no-fault divorce (that is, the parties have not lived separately for at least six months.)

Front 85

Premarital Agreements

Back 85

An agreement signed in contemplation of marriage, which will address rights as to either dissolution of marriage and/or rights to the estate of the other person. With regard to the enforceability of premarital agreements, Illinois has adopted the Illinois Uniform Premarital Agreement Act. It provides for broad enforceability of such agreements so long as there is fair and reasonable disclosure of the property or financial obligations of each party, the agreement is executed voluntarily and the agreement was not unconscionable when executed. Such agreements addressing divorce often limit a party's ability to seek maintenance (alimony) from her or his spouse. Such agreements addressing estate issues often prevent a party from being ability to renounce a will and take a statutory third of the other party's estate.

Front 86

Present Valuation

Back 86

A financial concept. It refers to the time value of money and goes along with the saying that a bird in the hand is worth more than two in the bush. In determining the present value, if a future stream of payments, the future payment stream is discounted back to a present value using a discount rate. This concept is important in divorce cases both in valuing businesses and in determining the value is a defined benefit plan (if there is to be other marital assets awarded in lieu of an interest in the plan) — a swap which lawyers call an offsetting property settlement award.

Front 87

Privileges

Back 87

A client's right to refuse to disclose confidential communications between the client and certain persons in a professional relationship with the client. In Illinois the usual privileges are, such as lawyers, doctors, mental health care professionals. Illinois law regarding mental health privileges is one of the broadest in the nation. See 740 ILCS 110/10 (Mental Health and Developmental Disabilities Act.) Other privileges are:

Back to top Physician Patient Privilege: 735 ILCS 5/8-802; Also the Illinois Code of Civil Procedure here describers other privileges such as husband and wife privilege, clergy privilege and certain other limited privileges.
Back to top Public Accountant's Privilege: 225 ILCS 450/27; "A public accountant shall not be required by any court to divulge information or evidence which has been obtained by him in his confidential capacity as a public accountant."
Back to top Reporter's Privilege: 735 ILCS 5/8-901-909;
Back to top Social Worker Privilege: 225 ILCS 20/16
Back to top Abused and Neglected Child Reporting Act: 325 ILCS 5/1 et seq.

A privilege applicable to family law cases is the mediators privilege under the Uniform Mediation Act.

Front 88

Pro Se

Back 88

A party who is representing him or herself in a lawsuit. A party has the right to represent himself or herself in divorce proceedings. On the other hand, it is said that the lawyer who represents himself has a fool for a client. I tell clients that I even hire my own lawyer to handle my real estate transactions.

Front 89

Prove-Up

Back 89

The final court appearance where the parties “prove-up” their marital settlement agreement. The actual court time for the prove-up is generally short, that is, the time before the judge is generally less than 10 minutes.

Front 90

Qualified Domestic Relations Order (QDRO)

Back 90

This acronym is pronounced “QUADRO” or “Q-DRO.” An order of the divorce case (that is, a domestic relations order) that is determined to be qualified. The “qualified” part of this term generally refers to the approval of the QDRO by the plan administrator.

Front 91

Qualified Illinois Domestic Relations Orders (QILDROs)

Back 91

It is a gross overstatement to state that under current law QILDROs are QDROs that are applicable to plans covered under the Illinois Pension Code. This is because there remain numerous limitations for what can be contained in a QILDRO. I had promoted the passage of legislation making QILDROs substantially more similar to QDROs in Illinois. The 2006 legislation which was passed is complex because it requires a multiple step process to divide retirement benefits covered under the Illinois pension code where there is a percentage order for the division of a defined benefit plan.

Front 92

QILDRO Calculation Court Order

Back 92

The sort of court order to use if a QILDRO provides that the alternate payee (recipient) is to receive a percentage of any retirement system benefit. Section (n-5) of the amended QILDRO legislation provides the form to be used. This form is entered not at the time of the divorce but years later -- before the pension holding spouse goes into pay status.

Front 93

Reimbursement

Back 93

A concept under Illinois law created to address situations in which one estate — often the marital estate — has made substantial contributions toward the other estate — often one person's non-marital property. For example, a party may own a residence prior to the marriage and keep title to this residence in his or her own name during the marriage. As such, generally, the property is determined to be non-marital subject to a right for reimbursement for the marital contributions toward the non-marital property. There are times when there is a claim for marital energies spent on a non-marital business or enterprise. Illinois courts generally focus on whether the marital estate was reasonably compensated for the non-marital energies in such cases.

Front 94

Removal

Back 94

The ability of the custodial parent to move from the State of Illinois to another state. Illinois lawyers refer to this as "removal" while lawyers in other states often refer to this as "relocation." Whether you call it removal or relocation, it is regulated by Illinois law which provides, “The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children. The burden of proving that such removal is in the best interests of such child or children is on the party seeking the removal. When such removal is permitted, the court may require the party removing such child or children from Illinois to give reasonable security guaranteeing the return of such children.” See 750 ILCS 5/609.

Front 95

Request for Production

Back 95

(Also known as a Notice to Produce). A written request by one party to the other asking the other party to turn over tangible objects, usually documents. Illinois law requires a party to seasonably update discovery responses. Illinois law also requires discovery to be properly organized (usually, this means organized as broken down according to the paragraphs of the notice to produce.)

Front 96

Respondent (Defendant)

Back 96

The party defending against a Petition for Dissolution of Marriage (Divorce Petition).

Front 97

Response

Back 97

A document used to answer or respond to the petition for dissolution of marriage or other pleading. Answers or responses usually admit or deny specific allegations or claims in the document being answered. In Illinois those allegations not specifically denied are therefore admitted. It is therefore only necessary to state the allegations which are denied.

Front 98

Service (of Process)

Back 98

The delivery of official papers by a means prescribed by law. Usually this is accomplished either through a private process server or a sheriff's officer. In Cook County there is the need for the appointment of a special process server. However, in the collar counties including Lake, McHenry, Kane, Boone and Winnebago there is no need for a special process server in divorce cases.

Front 99

Settlement

Back 99

The resolution of disputed issues by agreement between the parties. Most lawyers use the statistics that 95% of cases are settled rather than tried.

Front 100

Social Security Spousal Benefits

Back 100

A divorce spouse can get social security benefits based upon her (or his) spouse's benefits if the marriage lasted at least 10 years. The divorced spouse must be 62 or older and be unmarried. If the spouse that generally did not work outside the home were the woman, then the benefits she would receive has no effect on her former husband's benefits. See Spousal Benefits under Social Security's web site. The spousal benefits are 50 percent of the eligible worker’s full benefit unless the spouse begins collecting benefits before full retirement age. In that case, the amount of Social Security Spouse Benefit is permanently reduced by a percentage based on the number of months before he/she reaches full retirement age.

Front 101

Stipulation

Back 101

An agreement between the parties or their lawyers about issues in the lawsuit. Common stipulations in Illinois divorce cases are: 1) stipulation regarding irreconcilable differences (waiving the two year separation requirement); and 2) stipulation for non-contested divorce (usually based upon a signed marital settlement agreement where one party does not appear for the last court appearance, called a prove-up).

Front 102

Subpoena

Back 102

A document served on a party or a witness commanding appearance at a certain time and place. A Records only Subpoena is sometimes referred to as a Subpoena Duces Tecum. It is a requirement to produce documents, papers, or other things listed in the subpoena in lieu of a personal deposition.

Front 103

Summons

Back 103

The written notification of the lawsuit that is served upon the Defendant.

Front 104

Temporary Orders

Back 104

Orders granting relief between the filing of the lawsuit and the judgment.

Front 105

Trial

Back 105

The final hearing in court to decide the issues in the case.

Front 106

Uncontested Divorce

Back 106

A divorce in which there is no dispute as to how any of the issues will be resolved.

Front 107

Venue

Back 107

The place where a case will be heard. For example, if the place a case is heard is McHenry County a lawyer might say that the venue is in McHenry County. There are cases where venue is transferred to one county to another, often due to a motion to transfer venue. When there is a transfer from one county to another county it is called a motion to transfer due to forum non conveniens.

Front 108

Visitation

Back 108

The right of a parent who does not have primary custody of the child to spend time with the child. See, Parenting Time.