The Divorce Process
1. The Petition
A. The divorce process is started by the filing of a Petition for Dissolution of Marriage (Petition). The person (or party) who files the Petition is identified as the Petitioner (or Plaintiff) and the spouse is identified as the Respondent (or Defendant).
1. The person who files the Petition does not receive any type of preferential treatment from the Court. Which party files first is irrelevant.
B. The Petition is a public record, which sets forth basic facts about you, your spouse and your children. It is usually very brief, often only two or three pages in length, and does not contain a great deal of very personal information (e.g., income, graphic details relating to the reason for the divorce, etc.).
C. The Petition must state the reason (grounds) for the divorce; either being based upon "fault" or "no fault" grounds.
1. The "no-fault" ground is entitled "irreconcilable differences", and is the most commonly used ground for divorce because it negates the need to air anyone's dirty laundry in open court.
2. The "fault" grounds for divorce in Illinois include but are not limited to: adultery, bigamy, physical cruelty, mental cruelty (most popular), desertion, drug addiction or habitual drunkenness, conviction of a felony, impotency, existing prior marriage, and infecting the other with a sexually transmitted disease.
2. Service of Process
A. The Respondent must be "served" with the Petition and a Summons to Appear. A sheriff or private process server is used for this.
B. Option to file a voluntary appearance rather than be served with formal process, thus avoiding the potential embarrassment of being served at work.
C. When there is a history of domestic violence or substance abuse, it is often wisest and safest to utilize the services of a process server to effectuate service of process.
3. The Response
A. 30 days to file a written Response to the Petition after date of service.
B. If the Respondent fails to file a Response, the Petitioner may request that the Court enter a "default judgment." In default cases, proof is presented to the Judge showing that the Respondent was aware of the Petition and he/she has failed to appear and/or answer.
C. Once a Response has been filed, the case proceeds.
4. Temporary Support
A. Temporary support is the payment of child support, maintenance, and marital expenses during the pendency of the divorce case.
B. In many cases, the spouses live together while the divorce is pending and continue handling finances in their usual manner. Thus, temporary support orders are not needed.
C. If the spouses are not living together and/or sharing expenses, the court can order that specific amounts be paid for child support, maintenance and marital bills.
D. Temporary support orders can either be entered by agreement of counsel or by order of court after a full hearing.
5. Financial Investigation, Negotiation, and Settlement
A. Financial investigation involves determination of the value of the marital estate or "discovery".
1. Discovery procedures commonly used in divorce cases include depositions, subpoenas, interrogatories and review of financial documents by accounting experts.
2. If the assets and debts of the marriage are readily ascertainable and agreed on by the parties, they may choose to waive formal discovery.
3. If either party disagrees with their spouse's estimate of value or the amount of debt attributable to each party, formal discovery is necessary.
B. After discovery concludes, negotiations for settlement commence.
1. Once an agreement is reached, one of the parties will prepare a Marital Settlement Agreement and Parenting Agreement for review and signature.
2. The signed agreement(s) along with a proposed Judgment for Dissolution of Marriage are presented to the court at a "prove-up".
6. Child Custody, Child Support, and Visitation
A. Child Custody, child support, and visitation are also issues subject to negotiation.
B. If the parties agree early on these issues, a temporary order may be entered which will stay in effect until the case concludes and a Judgment is entered.
C. If the parties cannot agree on issues related to these issues, the Court may order the parties to mediation or evaluation.
D. Once the parties agree on a resolution of these issues, they will be included in the "prove-up.
7. Pre Trial Conference
A. If the parties are unable to reach an agreement, the attorneys may choose to submit the issues in controversy to the Judge during a pretrial conference.
1. Pretrial conferences are conducted in the Judge's chambers with both attorneys appearing without their clients.
2. The attorneys present their client's position to the Judge and the Judge makes recommendations for settlement, indicating how he or she would rule on certain issues if presented at trial.
3. The Judge's pretrial recommendations are not binding on the parties, but the do indicate how the Judge believes the case should be settled.
4. This is the best alternative for reaching a final settlement of the case without preparing for a full trial.
A. In the event an agreement cannot be reached through negotiation or pretrial conference, the matter is set for trial.
1. Can take up to 5-6 months to get a trial date.
2. The time is used to prepare the case for trial, including interviewing potential witnesses, reviewing expert's reports, taking depositions, reviewing the discovery produced by your spouse, preparing exhibits and entering into stipulations with opposing counsel.
3. Trial preparation is vital to presenting a good case.
4. This is a very expensive option.
B. Trials range in duration from one day to several weeks, depending on the nature and complexity of the issues.
1. There are no jury trials in divorce cases. The decisions are made solely by the Judge.
2. A final divorce judgment will be entered at the conclusion of the trial.
9. Hot Issues
A. Sole Custody vs. Joint Custody, and the Residential Parent.
B Visitation aka Parenting Time
C. Child Support
D. Maintenance fka Alimony
E. Marital Assets vs. Non-Marital Assets
F. Equitable Division of Assets
H. Parentage Actions
I. Pre-Marital Agreements
10. What to do if divorce is imminent
A. Consult an Attorney
B. Copy Documents
C. Inventory Household and Family Possessions
D. Know the Household Budget and Expenses
E. Know Family Debt
F. Determine what your spouse earns
G. Determine your earning potential
H. Examine your own credit history
I. Build financial reserves for yourself
J. Put your kids first
K. Remember you and your spouse are not a team anymore