Family Law - Common Questions

  • By _dm_templates
  • 07 Mar, 2017

Some common questions we receive - answered : 


After many attempts to stay together, I have decided to divorce my spouse. Do I need to have a legal reason for this, like proof that my spouse cheated on me?

Not in the sense that a specific wrong must be proven, as was once the case. Today, every state--including Illinois--has a “no fault” divorce option, where neither party is required to show that the other is at fault for the end of the marriage. This is also known as filing due to irreconcilable differences.

In Illinois, there are several additional legal reasons, or “grounds,” for a divorce, which include extreme emotional or physical cruelty, adultery, a felony conviction or desertion for more than a year.

Can my spouse and I use the same attorney for our divorce? We are parting on good terms and just want to get it done quickly.
Generally, no. Attorneys cannot represent opposing parties in the same case. Even in a simple uncontested divorce, each party is entitled to and should have his or her own legal representation. This does not mean that the divorce will be contentious or adversarial merely because each side is represented by legal counsel.

What papers or documents do I need to bring to our first meeting about my divorce?
Divorce covers a number of marital arrangements, including financial and custodial. You should bring any documents related to both marital (shared by you and your spouse) and individual (owned solely by you) assets (your marital home(s), investments, valuables), debts, and expenses. In addition to paperwork, expect to provide personal information such as your address, employer, and contact information during your first meeting with an attorney. Don’t worry if you forget to bring something to your initial meeting with an attorney; he or she will let you know what’s needed and you can always send it along later.

My divorce was final months ago but new issues have come up. Can I add new terms to our original agreement?

Sometimes circumstances change significantly after a divorce; a spouse loses his or her job or becomes disabled, a parent moves out of state, a need arises for a new custody arrangement, a spouse fails to pay child support or spousal maintenance (alimony), etc. In these cases, a former spouse can petition the court for a post judgment modification, or a change in the original terms of the divorce. In many situations it is possible to obtain an order modifying the original judgment of divorce.


Anyone who believes they are in imminent danger should call 911 immediately and report the situation to the authorities.

In non-emergency situations, it is important to determine whether an Order of Protection or a Stay Away Order is necessary. Under Illinois law, people may petition a court for an Order of Protection or a Stay Away Order against individuals who are abusing or harassing them. Orders can only be sought against people in certain legally defined relationships (including: spouses/former spouses, boyfriends/girlfriends, unmarried individuals who have a child in common, or people living in a shared or common dwelling). The definition of domestic violence in Illinois covers many behaviors, including physical abuse (defined by law as sexual abuse, physical force, confinement or restraint, purposeful sleep deprivation, or behaviors which create an immediate risk of physical harm). Intimidation or harassment may also be grounds for the issuance of a protective order.

An Order of Protection may be civil or criminal in nature and is designed to stop the abusive behavior and protect victims of abuse. There are emergency Orders of Protection available to victims in immediate danger, and other types of orders that provide longer-term prohibitions to abusers and protections for victims. The details of each Order of Protection and the type requested will depend on the facts of each case; a judge can order an abuser to leave a shared home, stop the abusive behavior, and undergo counseling, among several options.

My ex boyfriend keeps calling me and showing up at my work and night school. What can I do to stop him from bothering me?

Anyone who believes they are in imminent danger should call 911 immediately and report the situation to the authorities.

After that, it is important to decide whether an Order of Protection is necessary. Under Illinois law, a victim may be entitled to a protective order against someone guilty of harassment. The definition of harassment in Illinois is unnecessary conduct that causes a victim emotional distress. There are several behaviors that constitute harassment, including repeatedly visiting work or school, repeatedly calling a victim, repeatedly following victims in public places, and a few others.


*DISCLAIMER: The questions and answers presented on this website are for informational purposes only and do not constitute legal advice, nor do they establish an attorney-client relationship.

Call us for further details on 815-459-2844, or email David Gervais david@gervaislaw.com
By _dm_templates 07 Mar, 2017

We're often asked about Criminal Law. Perhaps the answer you seek is below 

Driving under the influence (DUI) is a serious offense in Illinois, and it is important to understand your rights and options leading up to your first court appearance. If convicted for DUI, your license will be taken away (revoked) for a set period of time, which varies based on different factors. Full driving privileges may be reinstated only after the terms of the conviction are successfully completed. The terms may include payment of a fine and court costs, completion of counseling, public service, jail time and the inability to drive during the period of revocation. It may then be necessary to schedule a hearing before the Secretary of State.

If you either failed or refused to take a breathalyzer test during the traffic stop, you will receive a notice that your license will automatically be suspended (known as a “statutory summary suspension”). This suspension occurs 46 days after the day you receive a ticket. It is important to seek legal advice to determine your rights and options before this suspension occurs. Legal grounds may exist to rescind the statutory summary suspension.

If you are uncertain whether an attorney can help with your particular situation,  contact us  for a free consultation.

What is the difference between a felony and a misdemeanor?

In Illinois, criminal offenses are divided into two basic categories, felonies and misdemeanors. Felonies carry a possible sentence of at least one year in jail and/or a fine, while misdemeanors (which are less serious but by no means "slap on the wrist" offenses) carry possible jail sentences of up to one year and possible fines as well.

While misdemeanor offenses may seem minor in comparison, a person can be charged with a felony for repeat misdemeanor offenses. In addition to those listed here, other sentences are available for misdemeanors, including court supervision, conditional discharge (non-reporting probation), and probation.

Drug crimes may be categorized as felonies or misdemeanors. The quantity of a controlled substance, type of controlled substance, intent to deliver, location of the crime, ages of the parties and past history are some of the factors that determine the severity of the crime.

Illinois has five classes of felonies that carry different penalties. First degree murder is also a felony offense and carries unique penalties. All felonies may also be punishable by a fine of up to $25,000 and the possibility of an extended prison term, depending on the circumstances of the offense(s).

Types of Felony        Illinois State Prison Term
Class X Felony 6-30 years
Class 1 Felony 4-15 years
Class 2 Felony 3-7 years
Class 3 Felony 2-5 years
Class 4 Felony 1-3 years
Class A Misdemeanor    Up to 1 year and/or $2,500
Class B Misdemeanor    Up to 180 days and/or $1,500
Class C Misdemeanor  Up to 30 days and/or $1,500

I received a traffic ticket while driving to work. Do I just pay the fine and attend traffic school or can I go to court to fight it?

This depends upon a number of factors, including the reason you were ticketed, whether you are required to appear in court, and in some cases, your personal preference.

If you are not required to appear in court (your ticket will state whether or not you must appear), you have the option of simply paying the fine listed on the ticket by mail. While this seems like a quick and easy solution, you should know that paying the fine may result in a conviction, which remains on your driving record for a set period of time. Depending upon the number of convictions you receive within a given time period, this can result in higher insurance rates and even a license suspension.

In order to avoid a conviction, you can request court supervision. Supervision can result in a fine and court costs, community service, and/or attendance of traffic school. If the period of supervision is satisfactorily completed, the supervision ends without a conviction on your driving record.

If you are required to appear in court, be sure to arrive at least fifteen minutes early and to dress appropriately (see our  General FAQs  for tips on what to bring and wear to court). Traffic cases that go to trial are often conducted as bench trials, meaning the judge (instead of a jury) listens to the evidence and decides the case based on the facts presented.

Every case is unique and the law can be applied in any number of ways to each situation. If you are uncertain whether an attorney can help resolve your particular situation,  contact us  for a free consultation.

Do I have to be there for my first court date or can my lawyer appear for me?
We strongly recommend that you appear for all court dates. Your appearance may be mandatory. In situations where you received prior permission from a judge excusing your appearance, you do not have to appear. However, if not otherwise excused, you must appear at every court date or risk having a warrant for your arrest based on your failure to appear. You also risk having any bond that you may have posted be forfeited to the court.

The judge told me I can have a bench trial for my car accident case. What does this mean?
A bench trial means a judge (instead of a jury) considers the evidence and decides the case based on the facts presented. Bench trial procedures are similar to those in jury trials: witnesses are called to testify under oath about what happened, and the judge decides the verdict after hearing the testimony of the witnesses and considering all of the evidence presented.

A teacher told me to turn off my cell phone while waiting in my car to pick up my daughter from school because it is against the law. Is this true?
Yes if on a public roadway in a school or construction zone. An Illinois law (IL House Bill 72) enacted in January 2010 prohibits the use of cell phones in construction and school speed zones. So if your child's school pickup area is in a school speed zone, wait to use your cell phone until you have left that zone. Exceptions to this law include calls made during emergencies (to summon police, fire, or ambulance services) and in voice-activated mode (i.e., hands-free). Also keep in mind that texting while driving is illegal statewide (and in many other jurisdictions), and talking on a hand-held cell phone is illegal in the City of Chicago.

My neighbor called the police because I was playing loud music late at night. What do I do now - pay the fine or go to court?

This depends upon the type of ordinance violation you received and in which municipality (city, town, village, etc.). Each municipality has its own set of ordinances that citizens and visitors are often unaware of but are still required to follow. Ordinance violations differ from a crime because they are issued by a municipality rather than the state. Examples of common ordinance violations include: disposal of abandoned cars or other waste on private property, noise disturbances (music, barking dogs), burning leaves without a permit, disorderly conduct, and trespassing.


*DISCLAIMER: The questions and answers presented on this website are for informational purposes only and do not constitute legal advice, nor do they establish an attorney-client relationship.

By _dm_templates 07 Mar, 2017

Some common questions we receive - answered : 


After many attempts to stay together, I have decided to divorce my spouse. Do I need to have a legal reason for this, like proof that my spouse cheated on me?

Not in the sense that a specific wrong must be proven, as was once the case. Today, every state--including Illinois--has a “no fault” divorce option, where neither party is required to show that the other is at fault for the end of the marriage. This is also known as filing due to irreconcilable differences.

In Illinois, there are several additional legal reasons, or “grounds,” for a divorce, which include extreme emotional or physical cruelty, adultery, a felony conviction or desertion for more than a year.

Can my spouse and I use the same attorney for our divorce? We are parting on good terms and just want to get it done quickly.
Generally, no. Attorneys cannot represent opposing parties in the same case. Even in a simple uncontested divorce, each party is entitled to and should have his or her own legal representation. This does not mean that the divorce will be contentious or adversarial merely because each side is represented by legal counsel.

What papers or documents do I need to bring to our first meeting about my divorce?
Divorce covers a number of marital arrangements, including financial and custodial. You should bring any documents related to both marital (shared by you and your spouse) and individual (owned solely by you) assets (your marital home(s), investments, valuables), debts, and expenses. In addition to paperwork, expect to provide personal information such as your address, employer, and contact information during your first meeting with an attorney. Don’t worry if you forget to bring something to your initial meeting with an attorney; he or she will let you know what’s needed and you can always send it along later.

My divorce was final months ago but new issues have come up. Can I add new terms to our original agreement?

Sometimes circumstances change significantly after a divorce; a spouse loses his or her job or becomes disabled, a parent moves out of state, a need arises for a new custody arrangement, a spouse fails to pay child support or spousal maintenance (alimony), etc. In these cases, a former spouse can petition the court for a post judgment modification, or a change in the original terms of the divorce. In many situations it is possible to obtain an order modifying the original judgment of divorce.


Anyone who believes they are in imminent danger should call 911 immediately and report the situation to the authorities.

In non-emergency situations, it is important to determine whether an Order of Protection or a Stay Away Order is necessary. Under Illinois law, people may petition a court for an Order of Protection or a Stay Away Order against individuals who are abusing or harassing them. Orders can only be sought against people in certain legally defined relationships (including: spouses/former spouses, boyfriends/girlfriends, unmarried individuals who have a child in common, or people living in a shared or common dwelling). The definition of domestic violence in Illinois covers many behaviors, including physical abuse (defined by law as sexual abuse, physical force, confinement or restraint, purposeful sleep deprivation, or behaviors which create an immediate risk of physical harm). Intimidation or harassment may also be grounds for the issuance of a protective order.

An Order of Protection may be civil or criminal in nature and is designed to stop the abusive behavior and protect victims of abuse. There are emergency Orders of Protection available to victims in immediate danger, and other types of orders that provide longer-term prohibitions to abusers and protections for victims. The details of each Order of Protection and the type requested will depend on the facts of each case; a judge can order an abuser to leave a shared home, stop the abusive behavior, and undergo counseling, among several options.

My ex boyfriend keeps calling me and showing up at my work and night school. What can I do to stop him from bothering me?

Anyone who believes they are in imminent danger should call 911 immediately and report the situation to the authorities.

After that, it is important to decide whether an Order of Protection is necessary. Under Illinois law, a victim may be entitled to a protective order against someone guilty of harassment. The definition of harassment in Illinois is unnecessary conduct that causes a victim emotional distress. There are several behaviors that constitute harassment, including repeatedly visiting work or school, repeatedly calling a victim, repeatedly following victims in public places, and a few others.


*DISCLAIMER: The questions and answers presented on this website are for informational purposes only and do not constitute legal advice, nor do they establish an attorney-client relationship.

Call us for further details on 815-459-2844, or email David Gervais david@gervaislaw.com
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