The Divorce Process
Divorce is a difficult decision people often have concerns about how the divorce process will affect their lives. A question people have is whether a divorce is the appropriate decision for them and their families. To better acquaint you with the divorce process in the State of Illinois, we have laid out a the process from start to finish.
Beginning of the Divorce Process: Petition for Dissolution of Marriage
In Illinois, the beginning of the divorce process begins with filing of a Petition for Dissolution of Marriage. A Petition for Dissolution of Marriage is the initial paperwork, which summarizes the key legal issues in a divorce. The filing spouse is called “the Petitioner” and the responding spouse is called “the Defendant” or “the Respondent.”
The Petition for Dissolution of Marriage is a request to the Court to issue a Judgment for Dissolution of Marriage and outlines the key desires of the Petitioner spouse. One of the key requirements to the divorce process is that the Petitioner must have been a resident of the State of Illinois for at least 90 days prior to filing the Petition for Dissolution of Marriage.
All divorces in Illinois are now under the guidelines of irreconcilable differences, which means that the Courts do not care about adultery or fault. Illinois is a “no fault” state that means that the Respondent spouse does not have to agree with the divorce. Another requirement of the divorce process is that the parties have lived separate and apart, continuously for a period of at least six months prior to the resolution of the divorce. This requirement is a liberal requirement in Illinois and the Courts generally rely upon the parties’ assertion for this requirement.
Service of Process of the Petition for Dissolution of Marriage
Service of Process is the means of notifying the Respondent spouse about the Petitioner’s filing of the Petition for Dissolution of Marriage. Generally, the Service of Process is delivered either by the local Sheriff’s Office or a private process server. The goal of the Service of Process is simply to inform the Respondent spouse of the future court date and give them the contents of the Petition for Dissolution of Marriage document and any other pleadings which have been filed.
The divorce court cannot begin the Illinois divorce process until the Respondent spouse has been served the initial divorce paperwork. The divorce court must have jurisdiction, which means that the court can address matters relevant in the divorce process such as the following:
- To grant the divorce
- Enter orders related to spousal support or otherwise known as Alimony or Spousal Maintenance
- Issue child support including temporary child support or other temporary or permanent child support orders
- Divide property and debts
- Enter parenting time and significant allocation of parental responsibilities such as child custody and visitation concerns
Generally, the Respondent spouse has 28 days from the date of service of the summons to file a response to the initial divorce paperwork. However, the Petitioner spouse will often file for initial court proceedings prior to the conclusion of the 28 days. Often, temporary child support and Spousal Maintenance orders may be issued on an emergency basis with little notice to the Respondent spouse. Thus, legal representation is critical as soon as possible because the attorney representing the Petitioner will seek temporary court orders, which may irreparably hurt the Respondent spouse.
When a Respondent spouse cannot be served or located, a Divorce by Publication is a method of serving a Respondent spouse. A divorce court in Illinois may grant a divorce, without all the rights of a normal divorce, when a Respondent spouse cannot be served. Divorce by Publication is the court procedure of filing and receiving a divorce when the Respondent spouse cannot be served and found.
Generally, a Divorce by Publication requires publication in a local newspaper for a period, which theoretically notifies the Respondent spouse of the impending divorce. A Divorce by Publication is only acceptable under extenuating circumstances such as the Petitioner spouse has made their best efforts to find the location of the Respondent spouse. Typically, best efforts require hiring of a private process server to do a skip trace in order to see if they can locate the Respondent spouse. The divorce court requires “reasonable diligence” prior to their approval for Divorce by Publication.
Filing of an Appearance and Responding to the Initial Paperwork
A Respondent spouse typically has up to 28 days to file their initial response to the Petition for Dissolution of Marriage. The Respondent spouse should consult with legal counsel prior to responding to a Petition for Dissolution of Marriage. An appearance is the payment of a filing fee and providing the Petitioner’s attorney with contact firmation, such as their address and means of communication via phone number and email. An appearance generally submits to the venue and jurisdiction of the court. The venue refers to the specific county where the divorce is being initiated.
The initial paperwork often will contain important responses to the issuance of child support, custody decisions, and spousal maintenance. These are vital economic and parental rights, which are affected by the initial pleadings and responses in a divorce case. Furthermore, a Respondent spouse’s Attorney may want to initiate their own pleadings or responses to the initial divorce paperwork to protect the Respondents spouse’s rights. The Respondent spouse has significant rights and responsibilities, which their attorney should safeguard by explaining the divorce process to their client.
Discovery, Litigation, and Temporary Orders
A contested divorce takes place when differences occur between the divorcing spouses. As a result, a contested divorce involves the process of litigation. Litigation is the process of critical financial discovery, which assists the court and the parties’ attorneys in calculating temporary child support and Spousal Maintenance orders.
The parties often have serious disagreements, especially when there are substantial assets or issues such as child custody disputes. Discovery is the initial paperwork sought by the parties and their attorneys. Generally, Discovery involves past tax returns, bank statements, paycheck stubs, credit card statements, retirement and pension statements, and other assets such as real estate holdings.
In addition, Discovery is the process of obtaining critical information to make informed decisions impacting the divorce process. The parties typically exchange financial information including a financial affidavit, which is filled out by both parties. The exchange of financial information is required in a divorce case. The parties will swear under oath that their answers are forthright and complete.
The initial Discovery may take a period of 30 to 90 days depending on the complexity and cooperation of the parties. These exchanges of financial information also will result in temporary orders involving child support and spousal alimony figures. The Discovery phase is a critical and important step in the divorce process.
Temporary Orders: Child Support, Spousal Maintenance and Others
Temporary court orders play a significant role in divorce cases in Illinois. Temporary orders are made by divorce courts after a hearing or by agreement of the parties. These orders are temporary until the final dissolution of a divorce case, or the divorce court has an opportunity to provide a hearing on the issue. These court orders are in place until the next court date or another time. Often, temporary court orders are by agreement or after consultation with a Judge on the issues of child support, spousal support, or other matters.
Either spouse may file a Petition or Motion for Temporary Relief of Child Support, Spousal Maintenance, Child Custody, Parenting Time, or other matters. Temporary orders are also necessary from time to time to force one party into paying financial bills from the ordinary course of the marriage, like how the married couples handled things prior to the divorce filing. Alternatively, parties may be forced to stop or prevent either spouse from making disparaging remarks about each other to the minor children. Moreover, cancellation of insurance policies or a change in beneficiaries are not permissible.
Pre-Trial is a significant phase in a divorce. The Pre-Trial Hearing is the process where the parties’ attorneys submit their position papers to the divorce judge and get feedback on how to properly structure the divorce settlement. The parties will often have conflicting views and the divorce Judge will inform the parties how they would resolve the disputes. The Pre-Trial Hearing is held in the Judge’s quarters between the Judge and the attorneys, without the aid of the parties. The attorneys argue their clients’ positions and submit briefs, which summarize the critical issues and disputes involved in the divorce process.
Generally, a pre-trial hearing is an attempt to avoid the costs and expense of trial and negotiate a resolved settlement to disputed issues. During the Pre-Trial Hearing, the divorce Judge will give feedback how they would resolve the issue or issues at trial. In many instances, the pre-trial hearing results in a settlement and a resolution of disputed issues involved in a divorce case.
Prove Up and Judgment for Dissolution of Marriage
A Prove up is the official proceedings, which the parties and their attorneys submit their marital settlement agreements and or parenting plans (or custody agreements) to the court for the court’s approval. Generally, the Prove Up is the final phase of the divorce process, when the parties settle and resolve their differences. The Prove Up hearing involves questioning of the parties by their attorneys and the other party’s attorneys to gain the Judge’s approval of the settlement terms.
A Judgment for Dissolution of Marriage is the final court paperwork which directs the court how to resolve key issues such as child support, custody and visitation, Spousal Maintenance, property division and payment of debts, among other issues. The Judgment for Dissolution of Marriage also will detail whether one spouse wants to reserve the right to change their name to their maiden name.
A divorce trial is the final step in the Dissolution of Marriage process. The trial involves substantial issues, which cannot be negotiated prior to the trial. If the parties must proceed to trial, the divorce judge and the parties will take consecutive days to try their case. The attorneys will file trial briefs, which summarize the parties’ positions on critical issues. Furthermore, the parties will utilize the discovery process and information obtained to litigate the matter at trial. In conclusion, a trial is where the Judge will determine the critical and disputed issues involving financial disputes, parenting issues, and other issues.
Length of a Divorce in Illinois
Each divorce case is unique because it involves different facts and circumstances, parties, and attorneys. The length of divorce in Illinois can be as short as a few months to multiple years depending on the jurisdiction, venue, and other vital issues. In our experience, most divorces in Illinois take a minimum of six months to a year to resolve. More complex and substantial divorces may take longer to resolve.