Frequently Asked Questions
How long will the divorce take?
Each case is unique and the length of a divorce case in Illinois depends on the facts and circumstances of each case. The length of the case largely depends on the complexity of your case. The more unresolved issues you have the longer you can expect your case will take.
What is the difference between joint and sole custody?
Joint custody requires both parents to consult with each other prior to making a major decision regarding their children. A major decision includes any decision involving the medical, education and religious upbringing. Joint Custody also requires that the parents attend mediation in the event of a conflict regarding the children.
Sole custody involves only one parent making the major decisions of the children. Illinois courts strongly favor an award of joint custody.
How is child support calculated?
Parents may be ordered to pay child support. Illinois law provides guidelines as to the amount of support owed to a child. The court shall determine the minimum amount of support by using the following guidelines:
|Number of Children||Percentage of Supporting Party’s Net Income|
|6 or more||50%|
Section 5/505 of the Illinois Marriage and Dissolution of Marriage Act provides that the above guideline shall be applied in each case unless the court makes a finding that a deviation is warranted.
How is alimony calculated in Illinois?
If the court determines that a maintenance award is appropriate, the court shall order maintenance in accordance with the following guidelines:
- In situations when the combined gross income of the parties is less than $250,000 and no multiple family exists, maintenance shall be in accordance with the guidelines, unless the court makes a finding that the application of the guidelines would be inappropriate.
- The amount shall be calculated by taking 30% of the payor’s gross income minus 20% of the payee’s gross income. The amount of maintenance, however, when added to the gross income of the payee, may not result in the payee receiving an amount that is in excess of 40% of the combined gross income of the parties.
- The duration of an award for maintenance shall be calculated by multiplying the length of the marriage by whichever of the following factors applies: 0 – 5 years (.20); 5 – 10 years (.40); 10 – 15 years (.60); or 15 – 20 years (.80). For a marriage in excess of 20 years, the court shall order either permanent maintenance or maintenance for a period equal to the length of the marriage.
Will my spouse be required to pay my attorney fees?
Generally, each party is responsible for their own fees in an Illinois divorce. However, a party may petition the court for interim fees if the other spouse has greater access to resources or has an ability to pay the other party’s attorneys’ fees.
Moreover, a spouse may be required to pay attorneys’ fees if that spouse is found to be in contempt of court for a violation of a court order. Accordingly, it pays to follow all court orders which are entered in court.
Should I talk to the Police?
First, every case and situation is unique and there is no one right answer — but, almost always the answer is NO. Reality is, you are not going to talk yourself out of being charged or arrested. If the police are going to arrest you, there is nothing you can do to change their mind — they simply won't believe you. The police, however, will tell you differently. The cops will tell you that if you cooperate they will go easier on you — they are LYING! They are trained to make you feel comfortable. To gain your trust. They are even allowed to lie. Just remember to say the magic words, "I want a lawyer." Be polite, courteous. Tell them that you want to cooperate but you were told that you should have a lawyer when you talk to the police. They won't like it — but that's a good sign!
Why have I been charged with two counts of DUI if I only drove once?
This is a common question. It is directly related to the presumptive legal limit of .08 blood alcohol concentration. Section 625 ILCS 5/11-50(a)(1) of the Illinois traffic code states that any person with an alcohol concentration in their blood or breath above 0.08 is guilty of Driving Under the Influence. Section 625 ILCS 5/11-50(a)(2) simply states that if a person is "under the influence of alcohol" he or she is guilty of Driving Under the Influence. If you are charged under both these sections, we can assume you took the "breathalyzer." The State, however, can try to prove you guilty two ways: (1) that your blood or breath alcohol concentration was at or over .08 — in which case there is a presumption that you are under the influence; or (2) that you were under the influence. For the second proposition the State must offer other evidence to show you were under the influence — such as bad driving, poor field sobriety test, or erratic behavior. The second section is obviously harder for the State to prove, which is why in many cases it is better not to have taken a blood or breath test.
I blew under .08 and they still charged me with a DUI. Why?
Something most people don't is that you can still be guilty of a DUI in Illinois even if you have blown under a .08. Section Section 625 ILCS 5/11-50(a)(2) only requires that the state prove you were under the influence — it doesn't have to be over .08.
Can I sleep off the alcohol in my car?
No. You may not pull over to the side of the road and sleep off a DUI. You don't want to be anywhere near your car. It is called "Actual Physical possession" and most people don't realize it. Even if the keys are in the bushes and you are asleep in the back seat — you are guilty of DUI. But ... at The Law Office of J. Patrick Nelson, PC we have found a defense to "Actual Physical Possession" that has been quite successful. Our criminal defense attorneys have employed a necessity of shelter defense, and we have won many jury trials with the necessity defense.
Should I take the breath or blood test?
This is a tough question. You have to consider the statutory summary suspension. If you take the breath or blood test your license will be suspended for 6 months. If you don't, the suspension will be a year. That being said, if you blow over a .08, it becomes more difficult to win your case at trial. If there is no blow, the chance increases greatly. If you have had nothing to drink and blow under .08, your license will not be suspended.
The police have asked me to take a lie detector test — should I?
In most cases, no. Remember, you are presumed INNOCENT. You are not required to prove anything. You are not going to convince the police not to charge you. They won't believe you even if you pass the lie detector test. Be happy they asked you to take a polygraph — it usually means they don't have enough evidence and they are fishing for a confession. Also, remember that polygraph tests are not admissible at trial — not even if you pass.
The Police never read me my Miranda rights — shouldn't my case be thrown out?
It is a common misconception that the police have to read EVERYBODY their Miranda rights or the case against them gets thrown out. Miranda warnings — named after the Supreme Court case Miranda v. Arizona — apply only to custodial interrogation. In simpler terms that means to questions asked, and statements made, while a person is not free to go.
What is Court Supervision?
If you plead or are found guilty, you receive a sentence. Usually this results in a conviction — which goes on your "record." If you are applying for a job and they ask if you have ever been convicted of crime, you would have to say yes. Court Supervision keeps your record "clean," so to speak. It literally means that after you plead guilty, the case is continued for a period of time (usually one year) and if you stay out of trouble and pay your fines, the case is dismissed. In reality, it is a form of probation that doesn't result in a conviction. It is the best possible result short of a finding of not guilty.
Should I have a Jury or Bench trial?
This is our favorite question! As we have said before, "the jury trial is the great equalizer." Taking 6 to 12 citizens from the community and asking them to listen to the evidence and apply the law, is truly the best part of our legal system. The few cases when a jury doesn't do what some people expect get much attention and overshadow the thousand and thousands of trials where the system worked and justice prevailed. It's true, jury trials are more time consuming and more difficult to prepare for — and that is why many attorneys don't like to do them. They may even try to talk clients out of their constitutional right to a jury trial. Not at The Law Office of J. Patrick Nelson, PC. Our criminal defense attorneys pride themselves on their skills picking jurors, cross-examining witnesses, and making opening and closing arguments. It is where we are at our best.
I was in the car, but the drugs belonged to my friend. Why was I charged with possession of drugs?
This is called "constructive possession." It means that if you are near drugs, and you could exercise control over the drugs, then you are in possession. For example, if four people are in a car inhaling or injecting drugs together and a police officer knocks on the window, all four could be convicted of possession even if the drugs were in the center console and not on anyone person.
Do I need a Lawyer?
Yes. If you try to represent yourself the Judge will hold you to the same standards he or she would if you were a licensed attorney — no exceptions!
What if I can't afford an attorney?
Luckily, our system requires that you have legal representation if and when you are charge with a crime. In Illinois we have a county Public Defender System. Each county has a Public Defender appointed by the Chief Judge. In larger counties like Dupage, Cook, Will, Kane, the offices are quite large, with many assistant public defenders to represent you. All public defenders are attorneys — they all went to law school and had to pass the bar. If you think you need an attorney appointed to you, just ask the judge at your next court appearance. They may have you fill out an affidavit of assets to prove you are indigent. If you are, the court will appoint a lawyer to represent you.