The Divorce Process
The process of divorce can be frightening because most people do not know what to expect. The time it takes to get a divorce can be as short as a few months to as long as a couple years. Generally, the more terms you and your spouse can agree on, the shorter the divorce process will be. The divorce process will likely include at least some of the following steps:
- 1: Petition for Dissolution of Marriage
The Petition for Dissolution of Marriage is the first document filed with the court in a divorce case. It formally sets out the basic facts in the case and asks the Court to grant you a divorce. If you and your spouse have children, this document will also contain basic information regarding your children and requests for sole or joint custody and visitation. The spouse filing the Petition for Dissolution is called the Petitioner and other spouse is called the Respondent.
The Petition for Dissolution needs to be served on the Respondent. The Sheriff can serve the Petition to your spouse by way of a Summons. The Summons is the legal document served by the Sheriff with a copy of the Petition that tells your spouse, or Respondent, a legal divorce action has begun. Generally, the Respondent has 30 days from the receipt of the summons to file an “Appearance” and “Answer” to the Petition for Dissolution with the court.
If you and your spouse have discussed the divorce and he or she has already obtained an attorney, the attorney may accept service of the Petition without the need for the Sheriff.
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- 2: Answer & Counter-Petition for Dissolution
The Answer is the legal document which is filed by the spouse receiving the Petition for Dissolution. The Answer is the pleading which sets forth the answers to each of the allegations in the Petition for Dissolution. A Counter-Petition for Dissolution may also be filed at this time. The Counter-Petition sets forth the Respondent’s allegations relating to the divorce.
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- 3: Mandatory Child Custody Mediation
Within Illinois, if there are issues involving children under the age of 18, the Supreme Court mandates the parents attend Child Custody Mediation. The specific mediation class differs from county to county, but is generally four hours in length. The mediation process is designed to help parents understand what issues may arise during the difficult divorce process. Topics covered include children’s needs during the divorce process, effects of ongoing parental conflicts on children, and co-parenting relationships to name a few. Parents will explore strategies to assist them and their children during the divorce process as well as in their post-divorce lives. The court will not complete your case until both parties have completed the mediation program.
For more information in DuPage County visit the DuPage Family Center Website. For more information in Will County visit the Will County Parenting Class Website. Information on the Cook County “Focus on the Children” parenting program is available via their information line at (312) 603-1550.
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- 4: Pre-Trial Motions
A motion is a legal document filed by one of the parties asking the court to order something. Pre-trial motions are sometimes necessary to compel a spouse to do something or not do something. Some examples of common pre-trial motions include:
- Temporary custody of minor children,
- Temporary child support and/or maintenance for a spouse,
- Temporary exclusive possession of the marital home,
- Interim awards of attorney and/or expert fees,
- Compel discovery requests, and
- Punish one side for failure to comply with discovery requests.
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- 5: Child Custody Evaluation
If the parties cannot agree on a custody arrangement, the Court will order a custody evaluation be completed by a professional, usually a psychologist or psychiatrist. The evaluation is conducted over several sessions with each of the parties and the children. The attorneys are not present during the evaluation sessions. The evaluator will then provide a written report to the judge so that he or she can make an informed decision regarding custody and visitation that is in the children’s best interest. Judges give a lot of weight to the recommendations provided by the custody evaluator.
It is important to properly prepare for the evaluation. Discuss with your attorney the issues surrounding your case prior to the evaluation. Remember to keep the issues to your children’s best interest, not your personal divorce issues. Never lie during an evaluation. Evaluators are trained to pick up on this, and it will negatively impact the evaluation. Do not instruct or coach your children on what to say during an evaluation. If the evaluator believes you have been coaching your children, it will negatively impact your evaluation.
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- 6: Discovery & Exchange of Information
The discovery phase of the case is where the parties exchange information and documents in an effort to “discover” the relevant and important facts of the case as well as to identify potential witnesses and evidence. The discovery is governed by specific state laws. There are a number of discovery methods your attorney may employ to get the information he or she needs to be able to effectively represent you. Your attorney needs to know your complete financial picture, the good and the bad, in order to be able to negotiate a proper settlement or effectively represent your interests at a trial.
If you have not been involved in your family’s finances, you will need to educate yourself quickly. In a divorce, financial ignorance is not bliss, it is suicide. The court will base its decision of who gets what and how much based on the evidence it receives. The discovery process is the method of obtaining that evidence. Therefore, it is vitally important you take the discovery process, as arduous as it is, very seriously. You can’t get what you want if your lawyer can’t present the proper evidence and reasoning to the court. Below is a list of the common discovery tools your lawyer or your spouse’s lawyer may use.
Interrogatories: Interrogatories are written questions that are required to be answered truthfully by each party under penalty of perjury. The number and types of questions are limited by law.
Financial Disclosure: One of the most important documents you and your spouse will be required to fill out separately is a Financial Disclosure. Each county has its specific form ranging from 2 to 13 pages in length. This form is required by the court before any temporary support or maintenance can be sought.
In this form, you must disclose all of your assets, liabilities, income, monthly expenses and other relevant financial information and sign it under oath. Any supporting documents such as tax returns, pay stubs, loan statements, etc. should also be provided to your attorney with this form.
It can be a tedious process, but putting it off will just prolong your case. Help in completing this form is available from our office should you need it.
Request to Produce: A “Request to Produce” is the written list of specific documents or general categories of documents that a party can request be provided by the other side. Some common examples of documents requested are tax returns, bank statements, credit card statements, expert witness reports, retirement account statements, and business records.
Subpoena: In some cases where the needed information is not available or is suspected of being withheld, an attorney may issue a subpoena for records. A subpoena is a court order requiring the person or company served with the subpoena to produce certain documents by a specific time or be subject to being held in contempt of court. A subpoena can also be issued to compel a person to give testimony in a deposition or trial.
Request for Admission of Facts: A “Request for Admission of Facts” is a list of short statements which the opposing party is required to respond to by either admitting them as fact or denying them under oath. There are very specific rules and time limits governing this type of pleading. If your attorney asks you to respond to this document, take it very seriously and do it immediately. This is a tool that is sometimes used by attorneys to limit the scope of a controversy.
Depositions: A deposition is oral testimony given under oath, usually at an attorney’s office, and recorded by a court reporter or videographer. An attorney asks questions of a deponent, and the questions and answers are then transcribed into a transcript which may be used at trial to impeach a witness. Depositions are not conducted in every case as they can be expensive and time-consuming. Depositions are usually taken in very complex cases that involve significant assets or a business valuation.
Failure to Comply with Discovery: If a party fails to complete his/her discovery, the other party may file a Motion to Compel with the court. The Motion to Compel will ask for sanctions or penalties for failing to comply with the discovery process such as disallowing certain documents from being entered into evidence or disallowing certain persons from testifying at trial. The judge may also award attorney’s fees to be paid by the party not complying with the discovery.
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- 7: Settlement Negotiations
Settlement negotiations can take place at any time in the case, even before a Petition for Dissolution is actually filed. In most cases, however, settlement negotiations usually begin sometime after the discovery process has begun. Before the attorneys can effectively negotiate to settle your case, they will need to know what all of your assets, liabilities and expenses are. You will need to think about what you what from your divorce and why you want it. For example, sometimes a party will want to keep the house because of an emotional attachment even though it will be a financial burden to maintain it after the divorce. Because there may be tax consequences you are unaware of when splitting up certain assets, transferring ownership of property or the payment of maintenance or support, it is best to discuss settlement with your attorney first, not your spouse.
Important: While in the divorce process, always consult with your attorney before making any major decision, especially a decision concerning your current living arrangements, buying a new home, refinancing an existing property, changing jobs, planning a move out of state, as well as any other major changes in the status quo. Many of these changes can and will have unintended negative consequences during the divorce process.
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- 8: Pre-Trial Settlement Conference
A pre-trial settlement conference is a meeting between the judge and the attorneys to discuss the facts and issues in the case. Some judges want the parties to attend these conferences, and others do not. The pre-trial conference is conducted to help facilitate the settlement of a case. The judge will listen to both sides and then give his or her thoughts on how best to settle the case. The pre-trial conference can save valuable time by resolving at least some if not all of the outstanding issues in a case.
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- 9: Trial
Some cases just cannot be settled. In the event the parties cannot agree to the terms of a settlement, the case will go to trial. In a trial, the parties as well as any other witnesses, will be called to testify under oath on the witness stand before the judge. The witnesses will answer questions from both attorneys, and possibly the judge. At the conclusion of the testimony, the judge will then decide the case. The judge will issue a written Judgment for Dissolution of Marriage which is binding on both parties. The Judgment will split up the marital assets and liabilities, decide custody and visitation, and award any maintenance or support it deems appropriate. At this point, if one party is still not happy with the outcome, an appeal may be filed. Appeals, however, are very time consuming, expensive, and not often done in divorce proceedings.
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- 10: Judgment for Dissolution of Marriage
The final step is the Judgment for Dissolution of Marriage. This document is the official divorce decree signed by the Judge. This is the document that contains all the provisions regarding the division of your real and personal property, assets and liabilities, child custody and visitation, child support and spousal support.
If your case is able to be settled without the need for a trial, the Judgment for Dissolution will contain a Marital Settlement Agreement and a Parenting Agreement if minor children are involved. A Marital Settlement Agreement is a document negotiated by both sides’ attorneys and signed by both parties in advance of a trial. It spells out the resolution of all the contested issues in the case. The Parenting Agreement is the signed document that resolves all the custody and visitation issues in the case.
If your case is unable to be settled prior to trial, the Judge will make the decisions resolving all the issues in your case and write the Judgment for Dissolution of Marriage.
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