How to File for a Divorce In Illinois
REQUIREMENTS NECESSARY TO FILE FOR DIVORCE
- At least one of the spouses must have resided in the state, or been stationed there as a member of the U.S. armed forces, for at least 90 days prior to filing.
- The divorce petition must be filed in a county where you or your spouse reside.
- Illinois must be your primary residence.
- If the divorce involves children, they must have resided in Illinois for six months prior to filing.
- Illinois provides divorce on a Fault as well as No-Fault bases.
- No-Fault divorce must be preceded by at least two years of separation and involve a petition on the grounds of irreconcilable differences.
Reasons for Divorce
Illinois allows you to file for divorce on No-Fault grounds if you and your spouse have lived separately for at least two years, and if you and your spouse use irreconcilable differences as the basis for divorce. If you and your spouse agree to a divorce in writing, a judge may permit a No-Fault divorce even if you and your spouse have been separated for only six months.
Under Illinois law, you may seek a Fault divorce on these bases:
- You or your spouse is naturally impotent
- Your spouse was married to another when your marriage occurred
- You or your spouse engaged in adultery
- Your spouse abandoned you for at least one year
- You or your spouse is addicted to drugs or alcohol for at least two years
- Mental or physical cruelty
- If your spouse maliciously attempts to murder you
- You or your spouse is convicted of a felony or “infamous” crime
- Infection of a spouse with a STD
- [Illinois Compiled Statutes 750 – Chapter 5 – Section: 401]
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- Prior to filing for divorce, be sure to document your financial assets as well as your earning potential and your spouse’s. This will prevent any unnecessary conflict during a spousal support decision.
- Despite the emotional upheaval that you and your spouse are experiencing, it is wise to shield your children from this unpleasantness if at all possible. Try to maintain as much of their routine as possible; continue their sports, school and social schedules.
HOW TO START THE DIVORCE PROCESS
The divorce process in Illinois begins with the filing of the Petition for Dissolution of Marriage. This legal form notifies the courts that you wish to divorce your spouse.
- After obtaining a Petition for Dissolution of Marriage, you should fill out the form completely.
- You will also need to obtain a Domestic Relations Cover Sheet, which should be completed.
- You should attach a Verification or Certification form that confirms the accuracy of the information in the Petition.
- Make copies of the completed forms prior to submission so that you may later provide them to your spouse.
- Submit all the originals to the Circuit Court of the county in which you or your spouse reside.
- You must also pay the filing fee at the time of submission.
- When you file your Petition for Dissolution of Marriage, you will be assigned a case number. When you wish to learn the status of your case, be sure to reference this case number.
PROVIDING LEGAL NOTICE
When you file for divorce, you become the plaintiff in this legal procedure, and your spouse becomes the defendant. You are legally obligated to notify the defendant that the Petition for Dissolution of Marriage has been filed.
Service of Process
You may provide legal notice to your spouse in the following ways:
- Use the local sheriff of your spouse’s jurisdiction to serve the divorce papers. A fee may be required.
- Hire a private process server to deliver the papers.
- The most popular method of service is to mail the divorce papers via mail. You or your attorney must file a Certificate of Mailing to confirm this.
- In some rare cases, when the whereabouts of your spouse is unknown, the court may publish a notice in the newspaper.
Response to the Petition
Once your spouse has been served with the divorce papers, they have 30 days to respond to the petition. This is most often provided in the form of a Response to the Petition.
- The Response to the Petition may confirm or deny the allegations made in the Petition for Dissolution of Marriage.
- Each point in the Petition for Dissolution of Marriage must be addressed with a “True” or “False” response.
- In some cases, your spouse may file a Counter Petition along with the Response. This petition may name additional grounds for divorce.
- Along with the Response, you spouse will also file an Appearance form, signifying that they wish to be present for the court hearing.
If your spouse fails to respond within the allotted 30 day period, a judge may enter a default judgment.
- To obtain a default judgment, you or your lawyer must show that Service of Process did occur on the date recorded.
- In a default judgment, the judge will grant a divorce and equitably distribute property.
- Even if a default judgment is entered, your spouse still has 30 days to file a motion to vacate the default judgment.
- A Certificate of Mailing must be filed with the Clerk of the Circuit Court.
- If there is a default judgment, it is likely that the judge will grant most or all of the requests in your Petition for Dissolution of Marriage.
- If your spouse requests a delay due to lack of legal representation, or some other major impedance, the judge is likely to delay the initial hearing 30 or more days.
UNCONTESTED OR CONTESTED DIVORCE?
If your spouse decides to file a Response to the Petition, in which they agree with all of the points of the Petition, and there is no Counter Petition, then your divorce is uncontested. It is in your best interests to attempt to secure an uncontested divorce because it will expedite the proceedings and significantly reduce the cost.
If your spouse, however, disagrees with points in the Petition for Dissolution of the Marriage or files a Counter Petition, you have a contested divorce. You should strongly consider hiring an attorney to manage your case if your divorce is contested.
Uncontested Divorce (Low Cost)
If your spouse agrees to all of the points in your Petition, you may qualify for a Simplified Divorce procedure. Under Illinois law, this streamlined process requires:
- Your marriage was less than 8 years long
- You have been separated for at least 6 months
- You and your spouse possess less than $10,000 in assets
- You and your spouse have no real estate or business
- Your combined income is no more than $35,000
- There are no children resulting from the marriage
- Neither you nor your spouse are seeking spousal support
Contested Divorce (High Cost)
- A contested divorce will require a number of hearings before a judge.
- Both Fault and No-Fault divorces can be contested.
- It is important to obtain a qualified divorce lawyer to represent you in a contested divorce.
- It is quite common for contested divorces to cost tens of thousands of dollars, with most of that going to attorney fees.
- In a contested divorce, attorneys for you and your spouse will engage in discovery which is an investigation into the allegations in the Petition, Response and Counter Petition. This is likely to include depositions from you, your spouse and others who may have knowledge.
- Lawyers for both sides may subpoena certain evidence like financial records, phone records and other documents.
DO IT YOURSELF OR HIRE A DIVORCE ATTORNEY?
Self-representation (Lowest Cost)
If at all possible, convince your spouse to agree to an uncontested divorce. Not only will an amicable divorce significantly reduce costs, but it will limit the emotional toil on you, your spouse and any children. It is best to discuss the terms of the divorce beforehand and have a signed, written agreement.
If you meet the criteria for an uncontested or simplified divorce, you are probably capable of managing the divorce procedure without an attorney. With the aid of powerful online tools like MyDivorcePapers.com you can determine if you qualify for this expedited divorce process by answering some simple questions and following the easy-to-use guide. My Divorce Papers provides the forms necessary to complete your divorce.
Mediation (Moderate Cost)
Illinois, like most states, encourages the use of mediation before and during divorce cases. A mediator is a neutral party that attempts to reconcile you and your spouse, eliminating the need for a divorce. Prior to a divorce filing, a mediator can also provide legal advice to help you and your spouse produce a settlement agreement. This prevents the need to hire expensive attorneys and enter protracted negotiations.
The court may recommend a mediator, or you can research available mediators in your area. These professionals do not have the final say on any issues; you and your spouse must make any final decisions. Mediators typically cost much less than an attorney.
Divorce Attorneys (High Cost)
If you and your spouse are at an impasse, then the judge will likely set a date for a trial. At this point, you will require a lawyer to represent your interests, provide legal advice and manage the clerical duties required to proceed. A divorce attorney is likely to charge by the hour, and a contested divorce could last months or, in some rare cases, more than a year.
Attorneys who are experienced in divorce cases can provide expertise essential for a desirable outcome. These attorneys will represent you in court, handle most of the scheduling and document submissions, and dialogue with various court officials. Most importantly, attorneys will handle negotiations with your spouse as well as conduct the discovery process which may involve interviews and other investigatory techniques.
- If your spouse contests the divorce, expect that they will hire an attorney. You should do likewise to protect your interests.
- Although an experienced divorce attorney is likely to produce a favorable judgment, it remains in the hands of the judge.
- A protracted discovery and negotiation process will increase costs
- A combative divorce can be especially difficult for children.
ASSET DIVISION, SPOUSAL SUPPORT & CHILD CUSTODY
In the vast majority of contested divorce cases, the main sticking points involve property distribution, alimony or child custody. If you believe that your spouse may argue for greater consideration in one of these issues, you should learn how Illinois statutes and courts govern decisions regarding these matters.
Like many other states, Illinois distributes property according to the principle of equitable distribution. This principle favors a fair—if not always, equal—distribution of property. The judge may consider some or all of these factors in deciding which spouse receives a property as well as responsibility for debts.
- Any governing prenuptial agreements
- Each spouse’s health, age and social standing
- Each spouse’s profession, employability and vocational skills
- Value of the property
- Each spouse’s debts, liabilities and financial responsibilities
- Contributions, both material and otherwise, to the acquisition of the property
- Custody of children
In certain instances, when it is unfeasible to split a property in half, a judge may award a property to one spouse and award financial compensation equal to half of the property’s value to the other.
This property distribution is only applicable to Marital—or shared—Property. Separate Property is not subject to divorce proceedings and typically include
- Property owned prior to the marriage
- Property received as a personal gift
- Property received through inheritance
- Property designated as separate through a prenuptial agreement
Unlike many states, Illinois does not make spousal support decisions based on fault. The judge is likely to consider the following criteria in an alimony decision:
- The income and financial assets of each spouse.
- The financial needs of both spouses
- The earning potential of each spouse
- Any loss of earning potential due to marriage
- The standard of living enjoyed during the marriage
- Any prenuptial agreements
Illinois courts may direct that you or your spouse provide support in the form of a lump payment, periodic payments or a combination. There is no set formula for determining the amount of alimony; a judge has considerable latitude to make such a determination.
Child Custody and Support
In an Illinois divorce case which involves children, the judge may decide to award one of two types of child custody.
- Sole Custody grants one parent primary responsibility for the wellbeing of the child. The parental custodian is charged with making major life decisions for the child.
- Joint Custody is a shared responsibility for a child. In many joint custody cases, a child may reside primarily with one parent, but both parents provide input into any important decisions regarding the child.
When making a child custody decision, the judge will consider the following factors:
- The desires of the child
- The desires of the parents
- The child’s relationship with family members
- Any violence perpetrated by a parent
- Parental involvement in upbringing
The most important factor in awarding custody is the best interests of the child.
FINALIZING YOUR ILLINOIS DIVORCE
Once you and your spouse have come to an agreement, or if the two of you are unable to settle any lingering issues, the judge will set a trial date. A trial may take only a few hours or up to several days, and may involve arguments from both attorneys. Once all of the issues are settled, the judge will sign a Judgment of Dissolution of Marriage officially finalizing the divorce.
If both parties are in agreement with the divorce (division of assets, child custody and spousal support), this process would not take more than a couple of hours.
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