Ending a Marriage in Illinois
A divorce (or dissolution) is the termination of a marriage. Even very amicable divorces likely will require several months to complete. A contentious divorce can take several years from start to finish. Eventually, the court will enter judgment of dissolution incorporating either (1) the parties’ settlement agreement concerning parental rights and responsibilities, maintenance, support, and property/debt division, or in cases where the parties cannot agree, (2) a judge’s determinations regarding these issues following a trial.
Step 1: Filing the Petition for Dissolution; Residency; Filing Fee
Once an individual or a couple decides to divorce, there are a number of steps that must be taken before the divorce can be granted. The first step is to file a petition for dissolution in the county in which Respondent or both of the parties reside. In Illinois, there is no waiting period to file a petition for dissolution; however, the court judgment for dissolution may be granted only after a party has resided in Illinois for 90 days.
The fee for filing a petition for dissolution is different in each county. If a person cannot afford the filing fee, they may seek a waiver of the filing fee from the court. In Cook County, Illinois, the fee for filing a petition for dissolution is $388.00.
A petition for dissolution must set out certain facts, including the “grounds” for divorce. In Illinois, the only grounds for divorce recognized are irreconcilable differences. This is also commonly referred to as “no-fault divorce.” Illinois law defines irreconcilable differences as the “irretrievable breakdown” of a marriage. The spouses are required to either be separated for six months in separate households or within the same household during the time of the breakdown of the marriage, or to assert that there has been a breakdown in the marriage, that the parties’ efforts at reconciliation have failed, and that future attempts to reconcile would not be “in the best interest of the family.”
Step 1: Appearance and Answer; Counter Petition for Dissolution of Marriage
Once a petition for dissolution has been filed and accepted by the clerk of the court, the filing party must serve notice of the petition and The Petition for dissolution to their spouse. There are several ways notice can be accomplished. Commonly, if the parties agree regarding obtaining a divorce, service can be accomplished simply by handing the filed petition for dissolution to the non-filing spouse. Alternatively, the filing party can personally serve notice via the county sheriff’s office or a special process server. This step can take several weeks to complete.
Once served, the non-filing party must file an appearance in the matter within a certain number of days (commonly 30 days). Frequently, after being served, the non-filing party will file their appearance and an answer to the petition for dissolution of marriage and even a counter petition for dissolution of marriage through their attorney. An answer to the petition gives the non-filing party an opportunity to dispute any allegations in the petition for dissolution, while a counter petition will ensure that the filing party cannot simply withdraw their petition and cause the divorce proceeding to disappear. Additionally, party might be inclined to withdraw their petition if a case isn’t going as they expected or they feel the judge is biased in some manner.
Step 3: The Discovery Phase
Discovery is the phase of divorce where your attorney and your soon-to-be ex-spouse’s attorney gather information about such things as your debts, your assets, employment, and other finances. Discovery may also be required for child custody and other divorce issues.
During discovery, you may be asked to provide such items as:
Life insurance policies
Joint bank statements
Joint credit card statements
Investment portfolios
Retirement account information.
Gathering these documents as soon as you start divorce proceedings is a good idea. Making extra copies or storing these documents digitally might also prove to be helpful.
Occasionally, the discovery process will involve subpoenas of documents that you do not have in your possession. A subpoena is a formal legal request for information from a third party, such as a bank, that your attorney may file if necessary.
Other tools of discovery your attorney may utilize include interrogatories, requests to production, witnesses statements and depositions.
Trial or Agreement
Divorces are frequently settled by agreement through negotiation, and advice from lawyers and a judge. Additionally, going to trial can be very expensive. Among the issues that must be settled before a divorce can be granted are the following:
Division of Real and Personal Property.
Division of Debts.
Whether an award of maintenance is appropriate and, if appropriate, the amount and duration of the maintenance award.
If there are children, what the allocation of parental responsibilities and parenting time arrangements will be.
And what financial obligations each party will have to the children.
If the parties are unable to reach an agreement, a trial will be held in front of a judge.
Marital Property
Property includes real estate, furniture, cars, bank accounts, stock, retirement/pension plans, and other assets. Anything acquired during the marriage, unless it was a gift, inherited or specifically excluded by a premarital agreement is marital property regardless of whose name is on the title.
Marital property may include such debts as mortgages, credit card balances, medical bills and other obligations incurred during the marriage for the parties or the parties’ children regardless of which party incurred the debt.
Unlike several other states, Illinois requires that marital property and marital debts be divided “equitably”, (fairly),which may or may not be equally.
In determining what is equitable, the financial or other contributions each party made in acquiring the property is considered along with each party’s financial circumstances and the likelihood either party may acquire assets in the future. The court may look at whether a party used marital income for purposes not related to the marriage, the duration of the marriage, and the allocation provisions for any children of the marriage, among other factors, in determining what would be an equitable property and debt distribution.
Allocation of Parental Time and Responsibilities
Some of the most painful and expensive arguments that divorcing parents experience involve parenting rights and responsibilities.
Illinois law now requires decision-making concerning the children and parenting time to be allocated between the parties. This document is known as the Allocation Agreement or Judgment. Illinois parents, after the filing of the divorce petition, are required to file, either separately or jointly, a proposed parenting plan. Many Illinois counties require couples who have disagreements about parenting issues to participate in mediation. All divorcing parents are required to attend parenting classes which educate parents on the effects of divorce on children.
When making decisions regarding children, a court will consider the allocation of various parental responsibilities, including the ability to make decisions about education, health, extracurricular activities, and religious matters for the child. The court will consider what is in the best interest of the child as well as any agreement made between the parents.
If the judge appoints an attorney to represent a child in a contested case, the parties will be responsible for paying the fees of that attorney as well as their own attorneys’ fees. In determining a parenting schedule, the court will consider each parent’s work schedule, the child’s schedule, the level of cooperation between the parties, and other factors affecting the best interest of the child.
Occasionally the court will appoint a Guardian Ad Litem in divorce cases. The Guardian Ad Litem or GAL will represent your child or children in the divorce proceeding. The GAL will conduct interviews with people who have contact with or knowledge of the child to determine the child’s wishes, feelings, attachments, and attitudes. The GAL eventually will provide the court with recommendations regarding parenting time and responsibilities. While a GAL’s recommendations are not binding, typically courts place substantial weight on what GAL’s recommend.
Child Support and Maintenance
Both parents have an obligation to support their children. In Illinois, child support is determined by using an “income shares” model. The income shares model considers the income of both parents and requires utilization of charts provided by the Department of Healthcare and Family Services. These charts can be found online at www.childsupport.Illinois.gov. An important factor used in the income shares model is the number of overnights each parent has with the child. Additionally, expenses for health insurance, uncovered medical and dental expenses, daycare expenses, extracurricular activity expenses and school fees must be allocated between the parents. Child support is always modifiable if a substantial change in circumstances occurs.
The obligation to pay child support continues until a child reaches age 18 or graduates from high school, whichever is later. Both parents may also have an obligation to contribute to a child’s post-high school educational expenses.
A determination of whether the payment of maintenance to one spouse is appropriate must also be made during a divorce. If maintenance is appropriate, the court will follow statutory guidelines as to how much maintenance is paid and for how long. Under the guidelines, a maintenance award will generally be calculated as 30% of the paying spouse’s gross income minus 20% of the receiving spouse’s gross income as long as the receiving spouse’s total gross income does not exceed 40% of the total combined income of the parties. The length of time maintenance will be paid depends on the length of the marriage.