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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.
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 highly stressful, both emotionally and financially.
Is Your Divorce Contested or Uncontested?
First, it’s essential to understand the difference between an uncontested divorce and a 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 relatively straightforward. On the other hand, a contested divorce is a 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 personally, 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.
Determine if you and your spouse qualify to file for divorce.
To file for divorce in Illinois, you have to have resided in Illinois for at least six months. Service members would meet the criteria of residence if they were on the military base of the state for six months. Service members who are outside the territory of the United States could 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 six 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 an excellent resource for learning about property settlement, custody, and support in Illinois divorce cases.
Take inventory of all marital and non-marital property.
Before filing for a divorce, privately gather all of your financial documents, including tax returns, pay stubs, 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 for the divorce proceedings, even if you are not at fault.
Marital property includes all property acquired by the parties during the marriage. The vast majority of the property is subject to an 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 the 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 the 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:
- List all of the property you and your spouse own together, along with estimated values and all current debts. Be sure to include the property type, complete with account numbers and current balances of debt. Take note of any debt that belonged to your spouse before you married. In the state of Illinois, the debt of a spouse from before the marriage is considered non-marital debt, so the other party is not responsible for it after the divorce.
- List all of the property you and your spouse own separately, including the property you owned before you married. Some pieces of property, such as inherited rental property from a relative, may not be considered marital property, even if you received it while you were married.
- List all of your household items you care about, such as furniture, televisions, laptops, appliances, etc. Feel free to include small items as well, including towels, picture frames, or decorations; if you want them, list them. More oversized household items are always part of the marital property division in Illinois.
- Document any money your spouse spent while engaging in marital misconduct. Include receipts and other supporting documents, like phone records and bank statements. Although you won’t gain any legal advantage from your spouse’s misbehavior, Illinois law does require reimbursement to the marital estate if a spouse spends money while engaging in misconduct.
More on this: How is Property Divided in Illinois Divorce?
Privately prepare your personal finances.
- Open a brand new, independent bank account by yourself and organize your finances. This way, you’ll always have access to money throughout the divorce, just in case your spouse cuts you off from financial sources. Do not inform or include your spouse in this bank account in any way. Try to open the account in a completely separate bank, away from any joint accounts you may have with your spouse.
- Consider applying for a credit card. A new credit card provides you with a line of credit in case you run out of funds during your divorce while also establishing or strengthening your credit score. Credit cards are only a viable financial option in this scenario if you have existing or above-average credit and a steady source of income. If you have a low credit score and little to no income, applying for a credit card could set you back even more.
- Start saving! Divorce can be costly; on top of accruing legal fees, you’ll be losing your spouse’s salary as a second form of income. If you need to establish an entirely new household on your own, having an abundance of funds can help you cover both legal costs and living expenses. Try to save enough money to live without any income for three to six months. Obviously, this can be impossible at times, but the more you can save, the better.
Update your beneficiaries and wills.
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 their removal before you are ready to tell them.
More on this: Estate Planning After a Divorce.
Consider hiring an experienced lawyer.
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 them.
Locate and complete the appropriate forms. Prepare for filing.
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. 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 free notary services to account holders. Make four copies of every document.
File your documents.
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 qualify for a waiver. The clerk will need to sign your summons, which will be returned to you. It would help if you also asked 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, they have 30 days from the date they were served with the complaint 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.
Participate in mediation.
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.
Schedule and attend your court hearing.
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 require 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:
- Date of the hearing
- Time of the hearing
- Location of the hearing
- Name of the judge who is hearing the case
- Length of time anticipated for the hearing
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 them. Address the judge with honor and respect, referring to them 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 mismanaged, all involved parties can be affected for a lifetime. Don’t put yourself in a vulnerable position. If you are seeking a legal presentation to prepare and file for a divorce in Illinois, give us a call.