In this article, we’ll explain how to prepare for a divorce in Illinois, answering questions like, “How do I file for divorce in Illinois?” and “How can I prepare for a divorce in Illinois?” Filing for divorce can be extremely stressful, both emotionally and financially.
First, it’s important to understand the difference between uncontested divorce and contested divorce. An uncontested divorce is a case where both parties mutually agree on the terms of a divorce. If this is the case, the divorce process is fairly simple and straightforward. A contested divorce, on the other hand, is a divorce case where both parties cannot agree on the terms of a divorce, which can range from child support to division of assets to parental responsibilities.
Considering you already know your spouse on a personal level, you can probably already guess if your divorce case will be contested or not. However, a lot of factors go into the divorce process, so you may not be able to predict your spouse’s reaction to every scenario until you both speak with an experienced attorney. If you know your divorce case is going to be a messy one, it’s best to plan ahead and start taking action prior to filing for divorce. Even if you and your partner are relatively on the same page, you may still want to prepare yourself with the following steps.
To file for divorce in Illinois, you have to have resided in Illinois for at least six months. Servicemen meet the criteria of residence, if they were on the military base of the state for six months. Servicemen who are outside the territory of the United States can satisfy this requirement of residence if they were on the territory of the state for six months before they left the country.
Illinois requires that parties to a divorce live separate and apart for 6 months prior to filing a divorce unless both parties agree to waive this requirement.
Be aware of any limits, standards, and thresholds that may apply to your situation. The Illinois Marriage and Dissolution of Marriage Act is a great resource to learn about property settlement, custody, and support in Illinois divorce cases.
Before filing for a divorce, privately gather all of your financial documents, including tax returns, paystubs, financial account statements, documentation of retirement plans, pension plans, etc.
Illinois law requires the fair division of marital property (property obtained during the marriage). It’s critical for you to assess the current financial state of your household in preparation of the divorce proceedings, even if you are not at fault.
Marital property includes all property acquired by the parties during a marriage. The vast majority of property is subject to equal distribution in divorce, regardless of which person’s name is on the title or who paid for the piece of property.
Non-marital property, on the other hand, is any property or asset that is not subject to equitable distribution during dissolution of marriage. There are two types of non-marital property: 1) property acquired by one party prior to being legally married, and 2) separate property that one party acquires during the marriage, such as an inheritance solely designated to that person and not the other party, or gifts given specifically to one party in the marriage.
While non-marital property is not subject to equitable distribution during divorce in Illinois, items and property are often moved around and lost or misplaced during the process of relocating. To make sure you keep all of your precious belongings, be sure to take inventory and photo documentation of everything you consider your personal property prior to filing for divorce. Here are some tips for documenting:
More on this: How is Property Divided in Illinois Divorce?
If you are planning on filing for divorce, you probably don’t want your spouse listed as a beneficiary for your living will or insurance policies. Don’t wait until after you file for divorce to make these changes – be sure to change your beneficiaries before you file, because the process to update your living will or insurance policies can be placed on hold until your divorce is finalized.
It’s important to understand that updating your will doesn’t cover all of your bases. Even if your will says otherwise, your ex-spouse could still be entitled to your 401k, IRA, life insurance policy, or a variety of other plans if something were to happen to you. Take the time to complete the necessary paperwork for each plan you intend to remove your spouse from.
If you and your spouse share a financial advisor or insurance company, you may need to personally contact the business to make sure they do not notify your spouse of his or her removal before you are ready to tell him or her.
More on this: Estate Planning After a Divorce.
Protect yourself and your family’s financial interests by hiring an experienced, knowledgeable Illinois divorce attorney. Even if your divorce is uncontested, a lawyer can assess your situation and provide you with the information you need to make the right decisions. Family law is very detailed and far reaching, and so many factors can affect your case. If you cannot afford a full-service attorney, some lawyers provide “unbundled services,” meaning they’ll provide limited services to you, such as preparing documents and providing legal advice.
Locate the District Court in your county. You’ll want to file your divorce in the county you and your spouse currently live. If you live in different areas, it is best to file in the county your spouse lives, because the court will more likely have the power to order support from him or her.
Illinois Legal Aid provides an interactive program that can help you prepare custom forms for your situation. The necessary forms can vary depending on particular circumstances, but at a minimum, you’ll need a summons and petition. Simply use the Legal Aid website to answer a few questions about your life and print your documents.
Once you’ve completed your forms, you’ll need to sign them. Some forms require a signature in front of a notary. Most courthouses have a notary on staff to notarize documents for you, if you do not have access to a notary. Many banks also provide a free notary service to account holders. Make four copies of every document.
If you and your spouse are not in agreement, serve your spouse. If you and your spouse are in agreement, you can skip this step and schedule your hearing.
Give the original and one copy of your documents to the clerk of the court that is hearing your case. You’ll be charged a filing fee, unless you apply and quality for a waiver. The clerk will need to sign your summons, which will be returned to you. You should also ask the clerk to stamp your personal copies with the filing date. Attach the original summons to the copy of the documents for your spouse. You have to serve your spouse within 30 days of the date the summons is issued. You will also have to pay the sheriff to provide personal service of your summons and other documents on your spouse.
Once you have served your spouse, he or she has 30 days from the date he or she was served with the complain to file a written “answer.” You’ll receive a copy of the answer, and if you don’t, call the clerk to ask if it has been received. If your spouse does not file an answer, consider filing for a Default Judgment. Not all issues can be resolved by default, especially if your spouse lives out of the court’s jurisdiction.
The Illinois Court website doesn’t provide all of the necessary forms online, so you may have to visit your local county court to obtain all of your documents and filing requirements.
In Illinois, mediation is required for any child-related disagreements. In mediation, a neutral third party attempts to bring the parties to an agreement on the proposed issues. The mediator is not in charge of actually making any decisions, as the intent is for both parties to compromise and settle disagreements without a trial.
If mediation is successful, the mediator will usually prepare the proper documents, obtain the signatures of each party, and submit the documents to the court on your behalf. If mediation is not successful, the parties will proceed to a trial.
To schedule your hearing, contact the clerk of the court. The clerk may schedule you for a scheduling conference or hearing, where a judge can ask you questions to ensure your case is ready for trial. If you are requiring witnesses for your hearing, be sure to issue the necessary subpoenas. All parties involved will need to receive a formal notice of the hearing; ask the clerk if your court provides a form for this. Your notice should include:
On the day of your hearing, arrive early and be sure to dress cleanly and respectfully. Your outfit should be tidy, conservative, and professional. Do not wear shorts, flip-flops, tank tops, mini-skirts, or sagging pants. If you and your spouse are not civil, do not speak to him or her. Address the judge with honor and respect, referring to him or her as “Your Honor” or “Judge.”
If you are considering filing for divorce, the process can seem overwhelming. We understand that experiencing a divorce is not only about the legal obstacles, but the mental and emotional ones, as well. If a divorce case is handled improperly, all involved parties can be affected for a lifetime. Don’t put yourself in a vulnerable position. If you are seeking legal presentation to prepare and file for a divorce in Illinois, give us a call.
O'Flaherty Law is happy to meet with you by phone or at our office locations in: