Joseph Emmerth Divorce Attorney

Frequently Asked Questions

What is your fee structure?

Divorce attorneys work on a retainer system.  That’s where the client gives the attorney a sum of money at the beginning, which the attorney places into the client trust account.  As the attorney does work on the case, the attorney debits the client trust account. I bill on an hourly rate, using increments of twelve minutes.  Every twelve minutes is billed at a .2, in other words. For example, if something on a case takes me 20-25 minutes, that would be billed as a .4, etc. Certain things, such as related adoptions or prenuptial agreements, are sometimes billed at a flat rate.

Are you experienced in cases like mine?

Very much so. I’ve been working solely in family law for the past 13 years.  I’ve seen just about every type of divorce, parentage, and the post-decree scenario you could imagine.  It’s been my privilege to represent men during this difficult time in their lives.

What's likely going to happen, in your opinion?

Naturally, that depends on the fact and circumstances of your case, in addition to the County your case is in and the Judge hearing your case.  While I don’t have a crystal ball, I can give you a pretty good idea of what to expect.

Should I move out the house while my divorce is pending?

No.  Finances are one of the most frequent sources of tension in any marriage, and often one of the main factors leading to a divorce.  By creating two households, you drastically increase your expenses, and you might unintentionally wind up throwing fuel on an already raging fire.  I spend a whole chapter on why moving out is a bad idea in my book.

Why do I need a divorce lawyer?

You don’t.  You also don’t need a car to get from here to Alaska; you’re welcome to go by bicycle.  However, it will take much longer, be unnecessarily difficult and frustrating, and, chances are at some point you will say “To hell with this” and get a car anyway.  It’s the same with divorce court. You’re entering an arena where everyone else in the room is an expert—except for you. Is that really a good idea?

How much does a divorce cost?

This depends on two things.  Number one, how much you and your spouse want to fight over things; and Number two, whether or not you and your spouse will listen to reason.  When you hear about a divorce case that’s been going on for three years, you can be certain that those people are getting bad advice from their attorneys.  Generally, the three things that can really make a divorce drag out are: a) custody fights; b) A closely-held family business; and c) Multiple pieces of real estate in different states or countries.

How do I serve the divorce complaint on my spouse?

In Illinois, parties to the divorce (you and your spouse) are not allowed to directly serve each other with legal documents.  You must either have your spouse served via the Sheriff’s office in your County or by hiring a private process server.

What if my spouse doesn’t want a divorce?

Thankfully, we don’t live in the Wild West anymore.  You’ve probably seen some old western movie where a character remarks that “She wouldn’t give me a divorce.”  Times have changed. If your spouse doesn’t want the divorce, it’s irrelevant. They can’t stop the process. And if they try to ignore the process by not participating, the Court will eventually hold them in default, and let you proceed with the divorce without your spouse.

How to prove fault in a divorce?

In Illinois, we no longer have “fault” in a divorce.  All of the old “grounds for divorce”, such as mental cruelty, abandonment, and habitual drunkenness have all been done away with.  Now there are only irreconcilable differences, which is automatically presumed six months after you file your divorce petition.

How much of my retirement is my wife going to get in my divorce?

That depends.  Defined contribution plans, like 401ks and IRAs, can be easily divided.  Defined benefit plans, such as pensions, railroad retirement, IMRF, and TRS are more complicated.  Also, it is very common for a retirement plan to have a marital and a non-marital component. For instance, if you have $100K in your 401k when you get divorced, but had $30K in there when you got married, only $70K is probably marital.

Do courts favor the mother when determining custody of the child?

Unfortunately, yes.  Despite the progress and the gains men have made towards equality in the legal system, most courts do favor women when it comes to custody issues, or allocation of parenting time (whether they like to admit it or not.)  That’s why it’s crucial to hire an attorney that’s experienced in representing men in divorce.

How can a father get primary custody of the child?

There are several ways.  If the mother is a drug addict, habitual drunkard, or constantly travels for work, it often becomes an easy decision for the court. But all things being equal, the more involved a father is and the more he participates in his children’s lives, the better chance he has.

What if my wife tries to move my children out of state?

In Illinois, she must follow the procedure set forth in the statute (and it’s rarely a rubber-stamp for her.)  If your wife wants to move out of state, she must first give you written notice with an opportunity to consent.  If you do not consent, she must file a motion with the Court, go through litigation, and hope the Court rules in her favor.

What to do if she refuses to go back to work?

I’ll assume you mean that this is occurring during the marriage.  This is a tricky one because it requires the man to make a quick decision.  History is full of marriages where the wife decides not to go back to work after having a child, even if that was the “plan.”  At this point, the husband has a tough choice to make. If he files for divorce immediately, the Court can ultimately force her to go back to work, or simply award her no spousal support. But if the husband waits for years, then a new “status quo” often gets established, where the “normal” is the wife not working.  This often leaves the husband on the hook for alimony (maintenance).

Can I request alimony from my wife?

Yes, you can!  This is one of the few areas of family law where things have really improved for men.  If your wife significantly out-earns you, you can absolutely request alimony (maintenance) from her, and the Court frequently grants this.

How can I protect my custody and visitation rights?

The best way to protect your rights is by immediately hiring an attorney experienced in representing men in a divorce.  If you wait several months before hiring an attorney or try and represent yourself, you give the other side time to begin building their case without any opposition.  Many men come looking for legal help far too late. You don’t win too many 100-yard dashes when you give your opponent a 25-yard headstart.

Can I control how my child support money is spent?

Unfortunately, no.  There is an entire body of Illinois case law that says child support payors are not entitled to an accounting of how the funds are used. However, there are some ways “fudge” this, depending on the facts of the case. For instance, child support is supposed to stand-in for feeding, clothing, and providing lodging for the child.  Sometimes a payor’s child support obligation exceeds that by a wide margin, which usually prompts the payor to ask the Court for a downward deviation in support. Support is not meant to be a windfall to the child.  If parents have roughly equal parenting time with the child, that will affect the amount of support as well.

How is child support calculated?

Illinois is an income-shares state, rather than a percentage state.  This means that the Court will take you and your spouse’s income, combine it into one number, run it through a formula created by the Department of Health and Family Services, and arrive at a support amount.  The Court then divides this amount between the parents, in the same ratio of each of their incomes to the total combined income. It’s more complicated than a simple percentage system (which Illinois used to use), but one benefit to men I’ve noticed is that, under the income-shares system, men’s support obligations tend to go down.