Divorce is a difficult process. It can involve splitting up property, determining which parent will make decisions for their children, when each parent will spend time with their children, and deciding how to handle maintenance (formerly known as alimony) payments. Even when you and your spouse agree on the terms of your divorce, the process can still be stressful. The complicated nature of divorce proceedings can make them particularly challenging for Illinois residents who are not familiar with the state’s laws regarding marital dissolution. This is particularly true after Illinois rewrote and changed many of the laws regarding divorce in 2016.
The good news is that even though going through the steps of filing for divorce can seem overwhelming at first, the major steps of the process aren’t actually that complicated to understand. Even though Illinois’ laws regarding divorce are complex, they’re designed to protect both spouses equally—and help them move on with their lives as quickly as possible. In this guide we’ll walk through each step required to finalize your divorce case here in Illinois so that you know exactly what to expect along the way.
Filing For Divorce
The process of filing for divorce is relatively straightforward. You’ll first have to select the county in which you will get divorced. Generally, this will be the county where either one of the spouses resides. You’ll then need to prepare a Petition for Dissolution of Marriage. The Petition is both a “snapshot” of your marriage, including information about yourself and your spouse, your children, and some additional details about your marriage, and a “wish list” generally detailing what you hope to get out of the divorce. Don’t worry though, you do not have to take an entire inventory of all your property and possessions in order to complete the Petition. Nor do you have to calculate out exact property divisions, maintenance (alimony) or child support payments, or other dollar amounts.
Additionally, you will need to prepare a “Summons” requiring your spouse to appear in Court. Once these documents have been filed, you will receive notice from the court that they have received the documents and are processing them. Keep in mind that there is a filing fee that must be paid to the court to open your case. This fee can be in the range of $300.00 to $400.00, depending on your county. After the court has processed your documents, your case will be opened.
Once this happens:
- You may need to provide additional paperwork depending on whether there are children involved in your case.
- The other party must receive notice from the court at this time through service of process, as required by Illinois law. Once proof of service has been received, your spouse must respond within 30 days after receiving it if he/she wishes to contest any aspect of what is being asked for in terms of property division, maintenance payments, etc. If they fail to respond, the case can continue without their participation.
- If you have children under the age of 18, both you and your spouse must individually complete a court-recognized parenting class, either in person or online, depending on the requirements of the county in which your case is filed. This must be completed before the judge will finalize your divorce.
Parenting Plan (Allocation Judgment)
If you and your spouse have children together, then you will need to prepare a Parenting Plan (also called an Allocation Judgment) in order to outline the rights and responsibilities that each parent has regarding their children. There are two major topics addressed in the Parenting Plan which fall under the general category of Parental Responsibilities.
One major topic is which parent gets Decision-Making powers for the children (formerly “custody”). There are four broad categories of decision-making that consist of: Education, Health, Extra-Curricular, and Religious decisions. Of course, both parents can share decision-making for the children, but that may not be the best option where there is a lot of conflict between the parents.
The second major topic is “Parenting Time” (formerly “visitation’), or determining the amount of time that each parent will have with their children. It is important to note that there is no universal “one size fits all” when it comes to deciding parenting time. You must take into account the various circumstances and availability of each parent in order to see what parenting schedule would be in the best interests of the children. Ideally, you will want an attorney knowledgeable in family law to aid you in ensuring that your parental rights are protected.
If you and your spouse are able to agree on a Parenting Plan, and prepare the document, the court will enter and approve the Parenting Plan which will be binding on your case. The Parenting Plan will essentially be “the law” between you and your spouse. If a spouse “breaks the law” and doesn’t follow the Parenting Plan, then the “law breaking” spouse can be brought before the judge to be held in contempt of court.
Marital Settlement Agreement
Here’s a bad (I say good) joke I partially plagiarized (let’s say adapted) from one of my law school professors (thank you Professor Taylor). What is a Marital Settlement Agreement? It’s an Agreement for a Marital Settlement. Ba dum tiss. Original joke – What is Due Process? It’s the Process that is Due. Ba dum tiss.
A Marital Settlement Agreement is a written document that outlines each spouse’s right to the marital property acquired during the marriage. Now what is considered marital property? In Illinois, the definition is simple, but can be tricky to implement at times. In short, the law in Illinois says that, with a few exceptions, all the property acquired by either spouse during the marriage is considered to be marital property, subject to equitable division. Note that equitable division (or “fair” division) does not necessarily mean that each piece of property is split equally.
With that general framework in mind, the spouses will prepare the Marital Settlement Agreement in a way that will equitably (“fairly”) divide the marital property of the spouses. This division of marital property will be clearly outlined in the Marital Settlement Agreement.
Commonly Divided Marital Property:
- Bank Accounts
- Retirement Accounts (Pensions, 401(k)s, etc.)
- Brokerage/Stock Accounts
- Marital Residences
As strange as it sounds, Illinois law also considered the debts acquired during the marriage, by both or either spouse, to be marital property. These debts are then also subject to equitable division in the Marital Settlement Agreement.
Additional topics that can be covered in the Marital Settlement Agreement include:
- Whether a spouse will receive maintenance (alimony).
- The amount of child support and when it will terminate.
- Division of child-related expenses. Specifically, the expenses related to Educational, Health, and Extra-Curricular costs of the children.
- Responsibility for future college costs and expenses
- Past and future tax filings
- Who is responsible for paying for the attorney’s fees.
You should prepare for negotiations by gathering any documents related to your marriage including tax returns from previous years; mortgage statements; credit card bills; bank statements; insurance policies; deeds for houses/properties shared together; other titles associated with joint purchases made during marriage (car titles etc.).
In this brief overview, we have discussed some clear-cut examples of how to divide property. Reality is typically messier than what we just discussed. A common example with a not so clear-cut answer is what happens when a spouse purchased a home prior to marriage and then the spouses together live in the home after getting married. Is the home now considered marital property? Several factors will affect the determination, but it may be the case that a certain percentage of the equity in the home is now considered marital property. This is true even if the home was only deeded in the name of one spouse.
The above is only one example of an issue that can, and does, commonly occur during a divorce. As you can imagine, it is highly recommended that you utilize an attorney who specializes in family law matters to assist you in drafting your Marital Settlement Agreement to ensure that your rights are protected. The attorney may also recommend that you hire an accountant or financial planner if there are complicated financial issues involved with your divorce case.
Once the terms of the Marital Settlement Agreement are agreed upon, the terms are written into the Marital Settlement Agreement which will be included the final Judgment granting a divorce.
Going to Court and asking the Judge to finalize your divorce (“Prove-Up”)
Once you have an agreement on all aspects of your divorce, you will want to finalize and close your divorce case. This involves a final court date referred to as a “Prove-Up” date. A Prove-Up is a court proceeding where you and your spouse will have an opportunity to prove that the Marital Settlement Agreement is equitable. In other words, you can use this court date to show the judge how the Marital Settlement Agreement is relatively fair, and that you both understand the major terms included in the Agreement. This process is accomplished by the judge, or an attorney, asking the spouses questions regarding the Martial Settlement Agreement. If the Parenting Plan has not yet been approved by the judge, then the same process will occur with the Parenting Plan. The questions regarding the Parenting Plan will be to determine if the terms in the Plan are in the best interests of your children.
There are a few other documents that will need to be prepared at the end of your case. At a minimum, there is the final Judgment granting your divorce, and the Certificate of Dissolution which gets sent to the Illinois Department of Public Health and is used for statistical purposes. A few other counties, I’m looking straight at you Cook County, will require more documents.
At the end of the Prove-Up process, the judge will grant your divorce and your case will be largely finalized. There may be some lingering issues, such as the pending sale of a home and division of proceeds, but you will not have any other court dates unless an issue needs to be resolved by the judge.
Some Things Just Can’t Wait (Temporary Orders)
Over the course of the divorce, you may need a quick resolution for an issue in your divorce. For example, you may not be able to agree to a parenting schedule with your spouse and need the judge to grant you a fixed parenting schedule during the course of your divorce. In another example, you may need temporary maintenance (alimony) and/or child support to allow you to survive apart from your spouse if you were not the main income earner. These are just some of the countless examples or temporary orders that you can ask from the judge.
If you and your spouse can come to an agreement, then you will be able to enter an “Agreed Order” with the court which the judge can sign off on. This makes the agreement for the temporary solution enforceable by court action if one spouse does not hold up their end of the bargain.
If an agreement cannot be reached, then the judge will hold a hearing or “mini trial” on the issue where evidence will be presented to the judge to reach a binding decision. Temporary orders are temporary, meaning they are in place until the court enters the final Judgment in your case. At that point, the terms of your Judgment, Parenting Plan (if you had children), and Marital Settlement Agreement will override the temporary orders.
Getting the Judge Involved (Pre-Trial Conferences and Trial)
Wow, that sounds relatively easy and straight forward. Why then do people make divorce seem like such a difficult and draining process? To put it simply, people that are divorcing tend to not get along (and that’s putting it mildly). Sure, there are couples that amicably divorce and can come to an agreement on all issues. Often, however, there are issues where the spouses cannot come to an agreement. In those cases, the spouses may have to turn to the judge to make the final determination on contested issues. This can happen either during the case (the Pre-Trial Conference), or when the case is at its end (the Trial).
In the above walkthrough of the divorce process, we assumed that spouses came to an agreement on the issues. If spouses cannot come to an agreement, then the judge will have to get involved to make a decision for the spouses.
For issues that arise during negotiations on which the spouses cannot agree, , the spouses, through their attorneys, may try a “Pre-Trial Conference” with the judge to quickly resolve the issues. During this conference, the attorneys for each party will informally present contested issues to the judge and outline what evidence would be presented during a Trial on the issue. The attorneys can also prepare memorandums for the judge to read beforehand that describe the issues in greater detail and offer potential solutions. At the end of the conference, the judge will provide their recommendations on how to resolve the issues. Essentially, the judge is saying “If this went to Trial and you formally presented this evidence to me according to the Illinois Rules of Evidence, this is the final decision that I would make.” By having this information from the judge, the vast majority of cases will reach a settlement.
Even with the judge’s recommendations, there are some issues which will not reach a settlement and a formal Trial on the issues will take place. Despite what movies and TV shows will have you believe, Trials are not commonly used in Illinois divorces to finalize a case. Over 90 percent of cases will settle before going to Trial.
Unlike the Pre-Trial Conference, a Trial is a formal hearing where both spouses present their evidence to the judge and ask the judge to make a binding decision on all issues that have not already been agreed upon by the spouses. This is a formal introduction of evidence which must follow the Illinois Rules of Evidence.
The judge will hear testimony from each party, as well as other witnesses if necessary, and admit documents into evidence. The judge is looking for evidence for the following issues:
- Allocation of Parental Responsibilities (“Decision-Making” and “Parenting Time”)
- If there are issues regarding decision-making or parenting time, then the judge will be looking for evidence that will determine what solution would be in the best interests of your children.
- Marital Settlement (“Property Division”)
- If there are outstanding issues regarding a division of marital property, then the judge will be looking for evidence to determine what is an equitable or fair division of marital property according to the circumstances of your marriage.
At the end of the Trial, the judge will make a ruling on the various issued presented before the court. Unlike the Pre-Trial Conference, this ruling is binding on the spouses and not merely a recommendation. The ruling will be included in the final Judgment in the case. This Judgment will incorporate both the agreed terms and the judge’s rulings. Once entered, the divorce is “final” and the marriage is officially dissolved.
Divorce is a difficult and emotional process, but it can be made easier with the right legal representation. Our team at Arteaga Law, LLC has years of experience handling divorce cases in Illinois and will work hard to help you reach an equitable settlement that meets your needs and protects your interests. If you have questions about our services or would like more information about how we can help, please contact us. Consultations are always free – contact our offices today at (224) 655-7179 or via email at Info@Arteaga.Law to schedule yours!