Divorce is a difficult time for many people. Emotions are all over the place, finances are stretched and stress levels are at an all-time high. We understand a divorce is one of life’s most challenging experiences and we want to make the process easier to understand by simplifying the process for you.
The divorce process in Illinois begins with the filing of a Petition for Dissolution of Marriage. The filing party is referred to as the “Petitioner” (as they’re petitioning the court to enter a judgment dissolving the marriage) and the responding party is referred to as the “Respondent” (again, because they’re responding).
To file in Illinois, a marriage need not have been entered into in the state, the parties simply need to reside in the state for at least 90 days prior to the date of filing.
The divorce process, in its entirety, can be divided into three categories:
The temporary relief phase of a divorce action begins as soon as the Respondent is served with a Summons and Petition for Dissolution, thereby giving the court personal jurisdiction over the individual. In certain emergency situations, a court may entertain an emergency motion for temporary relief prior to the Respondent being served.
The temporary relief phase prohibits either party from physically abusing, harassing, intimidating, striking, or interfering with the personal liberty of the other party or the minor children of either party.
At any point during the pending litigation (whether during the Temporary Relief Phase or Discovery Phase), a party may request a temporary order of relief upon a showing that relief is necessary. Temporary relief may be granted upon apparent discrepancies between the parties’ Financial Affidavits (a statewide-approved form required in all divorce proceedings to disclose the parties’ assets) and the parties testimony in court.
Examples of Temporary Relief that can be provided include, but are not limited to, the following:
The discovery phase is a key piece of the divorce process as it is intended to create a full and complete disclosure of the parties’ marital and non-marital assets. This phase typically begins by collecting and exchanging information that may be subject to contested issues during the litigation. However, the discovery phase of a divorce can be the longest and the most drawn out. If all documents and assets are easy to determine and they have no children, this phase could almost be quite simple.
Each party is required to disclose a Financial Affidavit, which includes income, expenses, assets, debts, and other financial related items. The more information that is given, the easier the divorce process becomes, as this allows the Judge to become more familiar with your living and financial situation. Additionally, a full disclosure of all financial related items generally allows for an easier calculation of distributing said assets between the parties.
The most commonly used methods for discovering information from the other party are the use of Marital Interrogatories and a Request to Produce Documents.
A request for Answers to Marital Interrogatories (pursuant to Illinois Supreme Court Rule 213) is a list of written questions requiring the responding party to make written responses. Typically, under the Rules, a party can ask up to 30 questions (including sub-questions) before they must seek the court’s approval to issue additional interrogatories. It is important to understand that a party’s Answers to Marital Interrogatories are treated the same as if the party were given those statements in court in testimony given under oath.
The Request to Produce (pursuant to Illinois Supreme Court Rule 214) is a similar discovery request; however, instead of producing responses to the requests, the responding party must produce copies of the documents that are being requested. This request is the best method for exchanging financial information between the parties.
When children are involved in a divorce proceeding, the parents must determine what allocation of parental responsibilities and parenting time they would like in both a temporary order for relief and the final settlement agreement. Where the proceedings are highly contested and the parties cannot, or likely won’t, come to any agreement regarding the minor children, the court will often appoint a “Guardian Ad Litem” (GAL) to the represent the child.
For all intents and purposes, the GAL is a separate attorney representing the child(ren)’s best interests. The child(ren) has the same attorney/client relationship with the GAL as each party has with their respective attorney. After meeting with the child(ren) and the parents, the GAL presents their report to the court in an attempt to find the living situation that best suits the child(ren)’s needs and interests.
The Resolution Phase is usually where the case settles. Each case is different and will have different outcomes. Illinois is an “equitable distribution” state, meaning the martial property shall be divided in an equitable manner. To avoid confusion, “equitable” doesn’t necessarily mean a 50/50 split (though it may in some cases); however, it means the distribution of assets will be according to what is fair (after considering the totality of circumstances on a case-by-case basis).
The court usually will encourage the parties to reach a settlement on property and debt issues. If the parties cannot reach a settlement, the matter proceeds to trial where the court will declare the property award. In applicable cases, the court will also rule on spousal support. Spousal Support is the obligation of one spouse to support the other financially on a temporary or permanent basis, which is decided at the court’s discretion.
If minor children are involved in a divorce, the Illinois courts will do everything possible to help reduce the emotional distress the children may be facing. If the parents cannot come to an agreement, the court will establish the custody order at its own discretion (usually with the help of a GAL or other child’s representative).
In July 2017, Illinois changed it’s statutory guideline child support to the Income Shares model. The Income Shares model determines the non-custodial parent’s obligation by determining a guideline monthly minimum for child support and applying the non-custodial parent’s share of the parties’ total income to the statutory guideline amount. For example, if the guideline states that the monthly support amount is $1,000 and the non-custodial parent makes 75% of the parties’ combined income, then the non-custodial parent would be responsible for $750 per month in child support.
If the parties cannot otherwise agree to the amount of child support, the court will apply the support guidelines. And if the court does not use the guidelines, the court’s finding shall state the amount of support that would have been required under the guidelines. The court shall also include the reasons for the variance from the guidelines.
After the judgment has been made and marriage has been dissolved, the wife can request her name to be restored and the court will order her former name or maiden name to be restored.
Divorce is difficult and we truly understand that. We hope this guide helps ease the process and relieve some stress off your hands. If you have questions, please feel free to reach out to our attorneys.
O'Flaherty Law is happy to meet with you by phone or at our office locations in: