What is the divorce process in IL
Here is an FAQ on the divorce process in IL:
1) What is the divorce process like in Chicago/Illinois?
In Illinois, the divorce process is governed by a statute entitled “The Illinois Marriage and Dissolution of Marriage Act” 750 ILCS 5/401 et., Seq. Divorce in Illinois, particularly in Cook, Lake, DuPage and Will County, divorce is known as“dissolution of marriage.” The Illinois Dissolution of Marriage Act provides guidelines for all issues affected by divorce, such as child custody and child support, support and maintenance as well as property distribution.
In Illinois, a divorce is technically known as a “dissolution of marriage”, and is guided by a statute entitled "The Illinois Marriage and Dissolution of Marriage Act" 750 ILCS 5/401 et. Seq. This statute provides guidelines for all issues affecting families in divorce, including property distribution, support and maintenance, child custody and child support.
To process a divorce, initially a “Petition for Dissolution of Marriage” is filed with the court. Once the document is filed, the other party (spouse) is served with the Petition in one of two ways: by the Sheriff or through a private process server. In the alternative, the spouse can file papers on their own or through an attorney to voluntarily submit him/her-self to the jurisdiction of the Court.
A divorce case is commenced by the filing of a document entitled "Petition for Dissolution of Marriage." Once filed, the other spouse will need to be served with the Petition, either by the Sheriff or through a private process server. In the alternative, the spouse can file papers on their own or through an attorney to voluntarily submit him/her-self to the jurisdiction of the Court.
Divorces are divided into two forms, contested or uncontested divorces. Uncontested divorces in Cook, Lake, DuPage and Will Counties generally take the least amount of time as well as being a lesser financial burden on the parties, as usually a settlement is reached between the parties prior to the case being filed.
Contested divorces have the opposite effect as the parties are unable to resolve their differences via a settlement so different options must be explored. Alternative routes to reach a settlement include mediation and arbitration. If a settlement cannot be agreed via mediation or arbitration, the case goes to trial and the Judge renders the final judgment.
Divorces come in two basic forms, contested or uncontested divorces. In most instances, a settlement will be reached between the parties prior to the case being filed. This option, or an uncontested divorce, will require the least amount of time, as well as financial expense.
When parties are unable to resolve all settlement issues, we can explore alternate ways of reaching a settlement, through mediation and arbitration. In the event that a mutually satisfactory settlement cannot be reached between the parties, the case will ultimately go to trial before the Court to render the final judgment.
2) What do I need to do to initiate a divorce?
In Illinois, to process a divorce, initially a “Petition for Dissolution of Marriage” is filed with the court. To file in Cook, Lake, DuPage and Will Counties as well as other counties in Illinois, you must have standing (residency for at least 90 days). Once the document is filed, the other party (spouse) is served with the Petition in one of two ways: by the Sheriff or through a private process server. In the alternative, the spouse can file papers on their own or through an attorney to voluntarily submit him/her-self to the jurisdiction of the Court.
In Illinois, a divorce is initiated when one party files a "Petition for Dissolution of Marriage" with the clerk of the circuit court in the county where that party has resided for a minimum of the previous 90 days. Upon filing, the other spouse will need to be served with the Petition by the Sheriff or by a private process server, unless the spouse is agreeable to filing their appearance and response to the Petition for Dissolution of Marriage either on their own or through an attorney to voluntarily submit themselves to the jurisdiction of the Court.
3) How long will it take me to divorce my spouse?
The timeframe for the process of divorce varies depending on the type of divorce filed. An uncontested divorce takes less time as an agreement is reached between all the parties prior to filing the document in court. In a contested divorce, the length of the process will vary due to settlement not being reached by both parties. If settlement cannot be reached between the parties, then the case will go to trial in Court.
In most instances, a settlement can be reached before the case is filed or goes to Court. In this option, an uncontested divorce, the parties will reach an agreement on all terms of the divorce, from child custody to maintenance. With this option, there is no need to hire more than one attorney. Our attorneys can prepare all the necessary documents to finalize the divorce in as little as a one month.
In a contested divorce, the parties do not and cannot reach a settlement on all terms of the divorce. With this option, both sides will retain separate attorneys to negotiate a settlement on their behalf. If a settlement cannot be reached, the case will progress to trial in Court. This option will require an extensive amount of time, as well as financial expense, as some contested cases can take up to 2 years or more to finalize.
4) How can I keep my divorce private from my employer?
There is no obligation to disclose a divorce proceeding to your employer. However, there may be requirements, from time to time, for you to physically appear in Court before the Judge.
Also, most parties divorcing with minor children will opt to facilitate child support payments through the State Disbursement Unit of Illinois via automatic withholding/garnishment from one spouse’s pay directly. The employer will receive a copy of the Uniform Order for Support establishing child support for the minor child(ren), as well as a Notice to Withhold directing the employer to withhold the specific sum for child support to be forwarded to the State Disbursement Unit.
5) How long will I have to pay alimony and how much would it be?
Alimony, also referred to as spousal support or spousal maintenance, can be one of the more challenging issues that needs to be resolved during a divorce. Maintenance may be awarded to either spouse as the Court deems just, if one spouse is unable to be self-supporting. The law regarding spousal maintenance is complex, and are based on a variety of factors such as:
1. The income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance
2. The needs of each party
3. The present and future earning capacity of each party
4. Any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having foregone or delayed education, training, employment, or career opportunities due to the marriage
5. The time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment or is the custodian of a child making it appropriate that the custodian not seek employment
6. The standard of living established during the marriage
7. The duration of the marriage
8. The age and the physical and emotional condition of both parties
9. The tax consequences of the property division upon the respective economic circumstances of the parties
10. Contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse
11. Any valid agreement of the parties
12. Any other factor that the court expressly finds to be just and equitable
There is no specific formula that dictates or governs how courts should deal with the issue of maintenance – from whether a spouse should be entitled to maintenance, whether the spouse should receive short term or long term maintenance, and how much that support amount should be. There are several types of maintenance: permanent maintenance that may last for the payee’s entire life, rehabilitative maintenance that lasts until such time the payee becomes financially independent, and reviewable maintenance that is awarded for a specified period of time and then the court re-evaluates the issue to see if on-going maintenance is warranted.
As for tax consequences, the maintenance that a person receives is taxable, meaning that sum is added to and increases the payees taxable income. Meanwhile, the person paying maintenance can deduct the amount from his or her gross income, thus lowering their taxable income.
6) Does my spouse have to have cheated for me to get a divorce?
No, your spouse does not have to cheat for a divorce to be obtained. There are many grounds for divorce such as irreconcilable difference, adultery, mental cruelty, desertion, alienation of affection, physical cruelty, drug addiction or drunkenness, infection with a sexually transmitted disease, and conviction of a felony.
No, there are a number of grounds for divorce, including irreconcilable differences, adultery, mental cruelty and desertion.
7) I do not have a pre-nuptial but would like to protect my retirement account?
In Illinois, the key to property division is that it be fair, so that both parties leave the marriage on equal footing. This is done by looking at all factors in the divorce, from dividing balances in joint bank accounts, dividing current joint debt, spousal maintenance, child support, and division of retirement interests.
Specifically for property division, there are two classifications of property - marital property and non-marital property. Non-marital property is not subject to division according to marital asset division law, and generally refers to any property and/or assets that were acquired prior to the marriage. Marital property, on the other hand, refers to any property and/or assets that were acquired and/or accrued during the marriage. Any and all retirement account contributions and/or accruals during the marriage are deemed marital property, and can be divided between the parties as part of the final settlement.
10. How much will my case cost?
It depends. At the start of your case, your lawyer has no idea of how much your case will cost. If your case involves a lot of negotiating or fighting, it will cost more. Filing fees for your divorce vary by county. For example, Cook, Will, Lake and DuPage County all have different fee structures for filing a “Dissolution of Marriage.”