Frequently Asked Questions
Your Divorce Questions Answered
Feinberg Sharma (FS) attorneys, Joy M. Feinberg and Madilyn Keating-Ellsworth answer FAQs about their family law firm and the divorce process in Illinois – including child custody, spousal support, and property division.
FAQs Answered By Joy Feinberg
“Now that I am separated, I would like to raise my child in a different religion than what my wife wants. Can I do that?”
Very often, custody is disputed because parents cannot agree on the choice of religion for the child. Under current Illinois custody law, the parent who receives sole custody also controls the child’s religion. When the issue of religion is addressed, most custody judgments state something like the following:
“The child will be raised in the Catholic religion. Each party shall make such arrangements to transport the minor child to and from catechism school. Each party further agrees to participate in the minor child’s religious upbringing as is necessary for the best interests of the minor child.”
Problems arise when the noncustodial parent, or the non-residential parent, decides to take the child to a different religious denomination on weekends when the child is spending time with that parent.
Most recently in Illinois, a three-year-old named Ela was subjected to numerous cameras and film crews while her parents debated whether or not their daughter, who was enrolled in a Jewish religious school and being raised Jewish, should have been baptized in the Catholic faith by her father – who had not notified his ex-wife, or advised the Priest, that Ela was being raised as a Jew. At issue was also whether or not Ela’s father, during his visitation time, could continue to take her to services in the Catholic church.
Illinois case law and the First Amendment to the U.S. Constitution demonstrate that absent a clear showing that taking a child to a church during the time the child spends with the noncustodial or nonresidential parent is, or would be, harmful to the child, the court is powerless to restrict a parent’s time with his or her child. So even submitting a child to a fiasco of press interference as a case became a cause célèbre, since no harm was evidenced by the child due to the deception.
One older Illinois case discusses harm to a child as the child being subjected to two different religious doctrines. This philosophy appears to be abandoned at present.
To avoid religious disputes, particularly when settling a case of mixed religion parents, more detailed language in the custody agreement will lessen the chance of a dispute arising post-divorce. The details might include:
- Husband/wife shall take the child to religious school/CCD classes/Bar Mitzvah classes, even though said classes occur during his/her parenting time.
- In the event that the child’s Bar Mitzvah/First Communion/Confirmation occurs on husband’s/wife’s weekend, he/she shall switch weekends with the other parent.
- The child shall be permitted to attend extra-curricular activities at husband’s/wife’s temple/mosque/church/synagogue, even if said activities occur during the other parent’s parenting time.
- Both parents agree that the child shall be instructed only in the…faith. Neither parent shall expose the child to any other religious instruction.
- Husband/wife may/may not take the child to religious services of his/her faith.
- Husband/wife may take the child to religious services only for the following events: Wedding of relative, funeral of relative…holiday services.
- The above suggested clauses could be enforced under a custody agreement, even though they could not be ordered by a Judge in a trial. Again, these are difficult issues and as always, it is the children who get caught between warring parents.
“Can I fire my divorce lawyer? How? Under what circumstances?”
Ideally, you and your attorney should work together as a team to arrive at the best possible outcome given your particular circumstances.
When the attorney-client relationship disintegrates, either you or your divorce attorney has the right to fire each other. Legally, a firing or discharge is known as “withdrawing.” Before taking such an action, you should sit down with your divorce attorney and discuss your dissatisfaction or frustration with the case, as you may be able to resolve your differences and continue working together. You should also consider seeking a second opinion from another attorney before you decide to terminate your relationship with your present attorney.
Perhaps your divorce lawyer is giving you sound legal advice and strategies, and the source of your frustration is actually the delays inherent in the legal system or the communication you are receiving from your attorney. Discussing your concerns with your attorney will help clarify if you’re getting “your money’s worth.”
On the other hand, the attorney-client relationship may be damaged beyond repair, and the best possible course of action is for your counsel to withdraw. When this happens, typically your attorney will draft a motion to withdraw, send you a copy of the motion prior to the court date, and present the motion to your assigned judge. Typically, the judge will grant the motion to withdraw and allow you time to find a substitute counsel or file an appearance to represent yourself. In Illinois, no motion by either party can move forward for 21 days after your attorney withdraws. The 21-day period is the time you are given to obtain new counsel.
There are instances in which a judge will not allow your counsel to withdraw, however, such as:
- your case is on the eve of trial;
- your counsel is the umpteenth attorney on the case;
- or the judge perceives the withdrawal as a tactic to prolong litigation.
You should also keep in mind that your lawyer may desire to terminate the attorney-client relationship. A lawyer may become disgruntled for lack of payments; however, the new “level playing field” statute in Illinois may assist the lower-income generating spouse in obtaining legal fees. Attorneys also need their clients to follow through on document production, meet with experts, and to act in accordance with the advice given. Non-cooperation with these requests may result in an attorney terminating a relationship with a client.
If you think you can save money by firing your divorce lawyer and representing yourself, you should be aware that the court will hold you to the same standard as an attorney if you decide to represent yourself. Your ignorance of family law could ultimately harm your case.
If you’re dissatisfied with your attorney, the best course of action is to seek a second opinion. You may determine your retained counsel is adequately representing your case but just not communicating with you frequently or clearly enough, or a second opinion may confirm that you need to hire a new divorce lawyer.
FAQ Answered By Madilyn A. Keating
“What is marital (or community) property and what is separate property? What is the difference between the two?”
In Illinois, “marital property” means all property and income acquired by either spouse during the marriage; whereas “non-marital” property is generally any property that was acquired before the marriage, property received as a gift, property that was inherited, or property awarded to one spouse in the divorce. The main difference between marital and non-marital property in Illinois has to do with the division and allocation to the parties upon dissolution. Non-marital property is awarded to each respective spouse. Marital property is equitably divided between the parties after consideration of a number of factors, including the length of the marriage, the age and health of the parties, the future earning capacity of each spouse, and the value of each spouse’s non-marital property. The court’s goal is to leave both parties in an equitable position.