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  1. #1
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    Jul 2011
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    Default What is the Divorce Process in Illinois

    What is the divorce process in IL

    Here is an FAQ on the divorce process in IL:

    Part 1

    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.”

  2. #2
    Join Date
    Jul 2011
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    2

    Default Re: What is the Divorce Process in Il

    Here is an FAQ on the divorce process in IL: Part 2

    11. Will I get child support
    Regarding Child Support:
    Are the percentage guidelines written in stone?
    No – they are GUIDELINES. Courts vary from the guidelines (increases and decreases) often, depending on the circumstances. Talk with one of our experienced attorneys to see if a variance might be warranted in your case.
    Do I have to pay support even if the kids are with me part of the year?
    Maybe – it depends on the language of your court order. Your must obey the court order. If you don’t like the order, obey it and go back to court to change it. Until it is changed, you must obey.
    My ex doesn’t let me see the kids. Do I still have to pay support?
    Of course. You can enforce your visitation rights – just call our attorneys. You must obey the court’s child support order regardless of whether you see the kids.
    What about daycare expenses?
    Daycare expenses are sometimes expected to be paid by the custodial parent out of the child support money received. Other times, the court will tack on daycare expenses above-and-beyond the regular child support. It depends on the circumstances of your case. Call our attorneys to learn more.
    What about health insurance?
    Illinois law requires obligors (parents who pay child support) to also obtain health insurance for he kids if they can do so through their employer. If the employer doesn’t offer insurance, obligors maybe required to buy health insurance for the kids or reimburse the custodial parent for the cost of health insurance.
    What about extracurricular activities and private school?
    It depends. Music lessons, tutors, athletics, etc. are all discretionary with the court. The judge will look at what the kids have done in the past, any agreements between the parents, and the financial resources.
    When does child support end?
    On the child’s 18th birthday. If your child will still be in high school on his or her 18th birthday, then child support is extended until graduation. Your court order may also include a different termination date – like the 21st birthday. Check your court order to make sure. Under some circumstances, children may become emancipated prior to their 18th birthday... in which case child support ends upon emancipation. Call our attorneys if you have questions.
    Who pays for college?
    The parents and the child. There is no formula. Courts do what’s fair. Kids should expect to pay for part of their education – whether its with student loans, savings, or a part-time job, students should expect to pay. Mom and Dad should expect to pay, too; each according to their ability.
    12. Can my spouse’s new wife adopt my child without my consent?
    You have to file a Petition for Adoption and for Termination of Parental Rights. While you may have custody, the other parent's rights must be terminated in order for your spouse to adopt the children.
    13. Who pays the court costs?
    You pay your own fees if you can afford them. If you can’t afford them, and your spouse can afford to pay for both lawyers, then your spouse pays. In nearly all cases, the spouses share the attorneys’ fees in some ratio – not necessarily 50/50 or 100/0 – usually it’s somewhere in between.
    14. What happens if I can’t find my spouse?
    In Illinois, you may still obtain a “Dissolution of Marriage” and if kids are involved, then the filing spouse can get custody of the kids, however child support and/or spousal maintenance cannot be obtained when the spouse is missing.

    Divorce in Illinois is initiated by filing a “Petition for Dissolution of Marriage” 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.

    In this case, in personal service cannot be obtained as the spouse is missing, notice of the Dissolution of Marriage must be published in a newspaper. Depending on where the case in filed, i.e Cook, DuPage, Lake or Will County, will determine which newspaper the notice must be published.


    You can get divorced, and if you have kids, you can get custody. But if you can’t find him/her, you can’t get any money from your spouse for , like for child support or maintenance.

    When you know where someone is, you start a lawsuit by serving a summons and a copy of your complaint on them. The summons tells them when and where they have to go to court. The complaint tells them what the case is about. Actually tagging someone with a summons is called “personal service.”

    Personal service assures that the other party actually knows what’s going on, and can defend themselves. Notice and an opportunity to be heard are the fundamentals of due process. Some courts just call it “fair play.”

    If you can’t serve somebody because you don’t know where they are or because they’re hiding, your alternative is to publish notice of the lawsuit in a newspaper. “Service by publication” is grounded on the hope that word spread to the general public will somehow reach the missing party and get them to come forward.
    To publish notice, you file an affidavit saying the other person can’t be found. The rules say you have to make “due” and “diligent inquiry” before you give up on personal service and resort to publication.

    That basically means you really have to try to find the other person. One case says your efforts to find someone must be “honest and well directed”; another says they must not be “casual, routine, or spiritless.” Other cases suggest that you have to track down whatever leads you have, no matter how stale.

    Filing the affidavit lets you publish notice of your lawsuit in “some newspaper” in the county where you filed your case. That notice must appear once a week for 3 straight weeks and must contain basic information about the case.

    Personal service gets you jurisdiction over a person, which is required for a court to order them to do things. Service by publication, on the other hand, just gets you jurisdiction over the property or “status” at stake in a case. In a divorce case, publication provides jurisdiction over your marital status.

    So, with just service by publication, a judge can dissolve your marriage, and get you divorced. You can also get custody of kids and Illinois marital property. But to get child support or maintenance (formerly known as alimony), you’ll have to track down your spouse and serve him with a summons, which makes sense—how can you get money out of someone you can’t find?

    15. Does my child get to say who they will live with
    There appears to be a general belief that a child of 12 or 14 can select which parent he or she wants to live with. That is not true. In Illinois a minor (a person under the age of 18) can never absolutely choose where they want to live. A judge can interview a child of any age to determine the child’s wishes as to custody and visitation, but the child’s wishes are only one factor to be considered by the court in deciding custody and visitation issues. When a child reaches the age of 18 years he or she is considered an adult and he or she can live with whichever parent he or she chooses.

    16. Can I stop a divorce, if I don’t want it.
    In Illinois, a married person still has to prove grounds to get a divorce. The most common ground – irreconcilable differences – is not so easy to prove when you think about it. What differences could exist between a husband and wife that are truly irreconcilable? Also, to prove irreconcilable differences, the Petitioner must prove that reconciliation efforts have failed and future reconciliation attempts wouldn’t work. Can your spouse really prove those things?


    18. Pet Custody
    More divorces now include couples fighting for pet custody. Typically, child custody and child visitation laws apply to children. Pets are regarded by most divorce courts as marital property and treated more like furniture than children.
    No matter how the divorce courts look at pets, you and your family may consider your pet as another member of your family. Who gets pet custody can be just as important as other decisions made during the divorce process. Since pet custody isn't necessarily decided by divorce courts, a local divorce lawyer can help you and your spouse negotiate pet custody.
    If one spouse owned the pet prior to the marriage or has been the primary caretaker, he or she may be more likely to be awarded ownership of the pet. When a pet belongs to a child, the parent with primary physical child custody may be allowed to keep the pet if it's in the best interest of the child.
    While most courts don't award pet custody and visitation, couples may negotiate about what's best for the animal and family. Many couples regard pets as members of the family and want to protect the well-being of the animals after divorce. Some pet owners may include pet ownership in the terms of a prenuptial agreement in order to avoid pet custody disputes in the event of divorce.

    Civil Pet Custody Disputes
    In a pet custody dispute between two people who are not divorcing, one party may bring a civil action against the other for the return or possession rights of the animal. Civil pet custody disputes generally arise between former roommates. In pet custody disputes, civil courts may use criteria similar to child custody considerations to determine who should have ownership of an animal.

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