Divorce Law

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The Anatomy of a Divorce Case

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“It is the duty of all lawyers to seek resolution of all disputes at the least cost in time, expense, and trauma to the parties and to the courts.”

            Preamble of the Illinois Supreme Court Rules – Code of Professional Responsibility for Lawyers

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CLICK HERE for our full Index of Divorce Law FAQ’s

What You Can Expect When Your Case is Filed

What you are about to read assumes that the divorce is not “agreed”, that the spouses are unable to reach a settlement, and that they therefore expect their case to be contested (as opposed to an uncontested case). It further portrays an average case in which many extraordinary items are not required, e.g., subpoenas, doctors’ depositions, custody evaluations, business valuations, psychiatric evaluations, vocational experts, other expert testimony, etc.

Generally, there are four stages of a divorce case. They are as follows:

1. The pleading stage.
This is when both parties file papers with the court that set out their positions and their version of the issues.

2. The discovery stage.
This is when you can compel your spouse to disclose everything you need to know regarding grounds, parenting issues, support issues, asset identification, asset values, and any other matters that will help you determined your rights and/or obligations.You get to question your soon-to-be ex under oath about the financial matters that they know about and you don’t, and compel him or her (or their financial institutions, business partners, employers, etc.) to produce documents or other indicia to establish if they are telling the truth.

3. The negotiation stage.
This takes place after the discovery is complete and you know what the facts, assets, and numbers are. It is at this time that you have enough information to assess your entitlement and your ability to prove it.

You present your position to the other side and try to reach a mutually acceptable resolution – a marital settlement agreement – concerning the terms of your divorce. If you are successful, this agreement will spelled out in your final divorce papers.

4. The trial stage or prove up stage.
If you and your spouse are unable to reach a settlement that is acceptable, the two of you must submit your issues to the court for final determination. This is where the court conducts a trial and enters a final judgment resolving everything in dispute.

However, if you reach a settlement on all issues, the court will conduct a prove up hearing in which it will hear proofs of the ground and the terms of the parties’ marital settlement agreement. If approved, a judgement for dissolution of marriage will be entered.

As part of the four stages, the process of the divorce legal system contains certain specific steps.

STEP ONE – JURISDICTION.

This has to do with the state in which the case is filed. A state must have proper jurisdiction of the subject matter (the marriage) and/or of the parties before it can be empowered to enter a valid and enforceable Judgment for Dissolution of Marriage.

Pursuant to Section 401 of the Illinois Marriage and Dissolution of Marriage Act, the Illinois courts are conferred with proper jurisdiction to enter a valid divorce if at least one of the parties resides in Illinois for at least 90 days next preceding either the filing of the case, OR resides in Illinois for at least 90 days next preceding the making of the Finding (the trial or any other court proceeding in which that spouse’s residency must be established).

It makes no difference if you were married in another state or country. It is where you or your spouse resides at the time of the divorce. Also, you do not have to remain in Illinois at the time the divorce is entered as long as you resided in Illinois for 90 days prior to your filing for divorce.

STEP TWO – VENUE.

This has to do with the proper county in which to file the case. Section 5/104 of the Illinois Marriage and Dissolution of Marriage Act sets forth the proper county or counties.

You may file your divorce in the county in which either you or your spouse is residing at the time of the filing.

STEP THREE – YOUR GROUNDS (REASON) FOR THE DIVORCE Continue reading →

STEP FOUR – THE ACTUAL DIVORCE PAPERS. 

The case officially starts with the filing with the court of the Petition for Dissolution of Marriage, which is commonly referred to as the “divorce papers”. CLICK HERE for a look at a sample Petition for Dissolution of Marriage.

Once the papers are filed, the moving party must have them served upon the non-moving party by either a deputy sheriff of that county or by a special process server.

STEP FIVE – BEING SERVED WITH PAPERS. Continue reading →

STEP SIX – SERVING A SPOUSE WHOSE LOCATION IN UNKNOWN Continue reading →

STEP SEVEN – EXCHANGING FINANCIAL AFFIDAVITS

Thirty days after the non-filing spouse is served with the Summons (or files his or her Appearance with the court), the discovery process can begin. Continue reading →

This is where you can do several things to learn exact details about your spouse’s finances. This starts with each party providing the other with his or her respective Financial Affidavits. The Illinois Supreme Court has mandated that only one such form be used statewide. To see a copy of it, CLICK HERE.

STEP EIGHT – TEMPORARY RELIEF (GETTING HELP FROM THE COURT BEFORE DIVORCE IS FINAL) –

After a case has been filed, either party may file a Motion (with supporting affidavit) with the court and seek certain temporary relief while the case is pending. This is permitted by Section 501 (a) of the Illinois Marriage and Dissolution of Marriage Act.

For example, a spouse who needs temporary child or spousal support need not wait until the end of the case to get the relief he or she needs. The court will conduct a summary hearing (based upon the Financial Affidavits of the parties) and order the obligor spouse to pay the appropriate statutory sums to the obligee spouse during the time that the case is pending, and until a final Judgment is entered.

Similarly, Section 501 (a) allows for the issuance of temporary restraining orders and preliminary injunctions prohibiting either party from, among other things, disposing of or transferring any assets, emptying any accounts, striking or interfering with the personal liberty of the other spouse or of any child, etc.

The court may also enter appropriate temporary relief including the ordering of the sale or purchase of any of the parties’ assets, and/or order either party to borrow funds when same is appropriate in order to save or prevent loss to the parties’ marital estate.

Other temporary relief may also be granted as the court sees fit.

STEP NINE – MARITAL INTERROGATORIES –

Interrogatories are a very useful discovery tool. They are written questions that you get to ask your spouse about his/her assets, and about certain other items that he or she has knowledge of. You do not have to think about what questions to ask because they are limited to those set forth in Illinois Supreme Court Rule 213. Your spouse must answer your interrogatories in writing and under oath within 30 days.

CLICK HERE to see Illinois’ actual Standard Marital Interrogatories.

STEP 10. – REQUEST FOR PRODUCTION OF DOCUMENTS –

Sometimes, receiving your spouse’s Answers to Interrogatories doesn’t give you the whole picture of his or her financial or other wherewithal. Illinois Supreme Court Rule 214 allows you to serve your spouse with a Notice to Produce any documents, objects, and tangible things that are in his or her possession and are pertinent to your case. Typically Notices to Produce and Marital Interrogatories are served upon the other spouse at the same time. Again, your spouse will be given 30 days to produce the items requested.

CLICK HERE to see the standard Notice to Produce that your attorney will serve upon your spouse if your case is contested.

STEP 11. – TAKING YOUR SPOUSE’S DEPOSITION –

After you have reviewed the data contained in your spouse’s Financial Affidavit, Answers to Interrogatories, and his/her document production, you may want your attorney to take your spouse’s deposition.

There may be irregularities or inconsistencies in the discovery your spouse has provided, and depositions are useful tools to get to the bottom of these and many other things, especially how and what your spouse will testify to at trial. A deposition gives you the opportunity to get an exact preview of what your soon-to-be ex will say at your trial because your attorney will pin down the testimony, so it has to be given consistent with what your spouse said at the deposition. If it isn’t, your attorney will be able to impeach your spouse’s testimony at the time of trial.

STEP 12. – STATUS OR PROGRESS COURT DATES – Continue reading →

STEP 13. – THE PRE-TRIAL CONFERENCE – Continue reading →

STEP 14. YOUR MARITAL SETTLEMENT AGREEMENT – Continue reading →

STEP 15. – YOUR PROVE-UP HEARING –

In cases where the parties have resolved all their property, child, and support issues and have approved and signed their Marital Settlement Agreement and all other necessary documents, the court will conduct a prove-up hearing to conclude the case and enter a Judgment for Dissolution of Marriage.

It is called a “prove-up” hearing because the court hears proofs (by way of testimony) from the moving party regarding the ground for the divorce and the terms of the parties’ Marital Settlement Agreement. If everything is conscionable and is otherwise in good order, the court will enter its Judgment consistent with the terms that the parties agreed upon. These hearings are brief and rarely exceed 10-15 minutes.

STEP 15. – THE TRIAL 

How Divorce Litigation Works
Litigation – Going To Court

What Items Get Decided Upon in a Typical Divorce?

Answer: The following is a list of items that the parties or the judge must decide upon. The list varies depending upon the circumstances:

Children

• Who will be the residential parent?
• How many overnights will each parent have with the children each year?
• What parenting time will each parent have?
• What parenting decisions will be made by each party?
• Will there be any restriction on where the custodial or residential parent may move with the children?
• How will major decisions involving the children’s health, welfare and education be made?
• If there are transportation expenses involved with the nonresidential parent being able to spend time with the children, and who will be responsible to pay them.

Marital Residence (Owned)

• What disposition will be made of the parties’ home? (Will it be sold presently, will one of the parties deed his or her interest in it to the other, or will one of them have the right to continue to live in the home, and if so, for how long and on what terms?)
• If one of the parties will have the right to live in the home for a period of time, will he or she have the right to rent any portion of the home or to allow any other person to live there? (If rent will be received, who will have the right to keep it?)
• If one of the parties will have the right to live in the home for a period of time, will that right be affected by that party’s remarriage or by his or her living in the home, as if married, with another person?
• If the home is to be sold, either now or in the future, how will the proceeds be divided upon its sale?
• If the parties cannot agree upon any of the provisions of the sale (for example, the selling price, whether it will be sold privately or through a broker), how will this be determined?
• Who will be responsible for the ordinary maintenance and carrying charges with respect to the home until it is sold?
• Who will responsible for major repairs and the costs of preparing the home for sale?
• If and when the home is to be sold, will either party have a first option to buy it?
• Who will be entitled to deduct the mortgage interest charges and real estate taxes for income tax purposes?
• Who will be responsible for any income (capital gains) taxes which may be imposed as a result of the sale of the home?

Marital Residence (Rented)

• Who will have the right to continue to occupy the marital residence?
• Who will be obligated to pay the rent and other carrying charges in the future?
• What disposition will be made of any security on deposit?
• Will the party who will not continue to occupy the marital residence have an obligation to joint with the other party in renewing the present lease if the landlord will not renew it without his or her signature?

Debts

• What debts (other than business debts or the mortgage on their home) do parties have?
• Who will be responsible to pay each of these debts?
• Which credit cards get cancelled and who pays what toward the outstanding balances?

Personal Property and Accounts

• What disposition will be made of the furniture, household furnishings, and other items of personal property in the marital residence?
• What disposition will be made of any savings or checking accounts in either the joint or individual names of the parties?
• What disposition will be made of any stocks, bonds, or other securities in either the joint or individual names of the parties?
• What disposition will be made of any automobiles, boats, motorcycles or other items of personal property in either the joint or individual names of the parties?
• Will either party have the right to share in any pension or retirement benefits to which the other is or may be entitled, and if so, to what extent?
• Will either party be entitled to a share in the value of any business, professional practice, royalties or other personal property owned by the other party and if so, to what extent?

Support

• Will either party be required to make payment to the other for his or her support, and if so, in what amount and for how long?
• Income tax considerations relating to spousal support
• Will either party be required to make payment to the other for the support of their children, and if so, in what amount and for how long?
• If the parties have more than one child, by how much will the child support payments be reduced when the obligation for the support of one or more of the children terminates?
• Will the support payments to be made by one of the parties to the other, either of the other parties’ support or for the support of their children increase or decrease in the future due to the changed financial circumstances of either of the parties, economic conditions or other factors?
• Who will be entitled to claim the children as exemptions for income tax purpose?

Life Insurance

• Will either party be obligated to maintain life insurance on his or her life for the benefit of the other, and if so, in what amount and how long?
• Will either party be obligated to maintain life insurance on his or her life for the benefit of the children, and if so, in what amount and how long?
• If either party is obligated to maintain insurance on his or her life for the benefit of their children, who will be the beneficiary of such insurance?
• Will the obligation to maintain such insurance decrease (as to amount) in the future, and if so, when and in what amount?

Medical Insurance

• Will either party be obligated to provide medical or other insurance for the benefit of the other and if so, for how long?
• Will either party be obligated to provide medical or other insurance for the benefit of the children and if so, for how long?
• Who will be responsible to pay for the children’s co-pay costs and non-covered medical, drug, hospital, and dental expenses?

College and Private Schools

• Will either or both parties be obligated to pay for the college education expenses of their children, and if so, what expenses, and to what extent?
• If such expenses are financed, either in whole or in part, by loans, who will be responsible to repay them?
• If one of the parties is obligated to make payment to the other for the support of their children, will there be any reduction in those support payments while some of the other children are attending college?
• All issues concerning the attendance and cost of private grammar and high school tuition.

Income Taxes

• Who will be responsible for any deficiency which may be due on any past joint income tax returns filed by the parties?
• Who will be entitled to receive any refund which may be due on any past joint income tax returns filed by the parties
• If permitted by law, will the parties file joint income tax returns for the present year? If so, who will be responsible to pay any taxes due and who will be entitled to receive any amount refunded? How will the parties credit any estimated payments made by either of them or any income taxes withheld from their salary or other compensation?

Miscellaneous Provisions

• Will the parties each waiver whatever claims they may presently have to the other’s non-marital property?
• Will either party be obligated to leave any portion of his or her estate to the other?

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OUR DIVORCE LAW INDEX

>How Much Will My Divorce Cost & How Long Will It Take?
>Can One Lawyer Handle the Whole Thing?
>Illinois Grounds For Divorce
>Do We Have to Be Separated Six Months?
>What County Do We File in?
>Does It Help to Be the First to File?
>Does Adultery Affect Who Gets the Kids?
>What is a Common Law Marriage?
>Annulments (Declarations of Invalidity of Marriage)
>What Is a Legal Separation?
>Litigation – Going To Court
>How Divorce Litigation Works
>A Look at Divorce Papers
>Contested v. Uncontested Divorces
>Agreed Divorces
>Being Served with Papers
>Dating During Divorce
>What is Discovery?
>What is a Deposition?
>What is a Pre-Trial Conference?
>What Happens at a Status or Progress Call Court Date?
>What is a Marital Settlement Agreement?
>Marital Settlement Agreement Checklist
>Criteria For Who Will Be The Residential Parent In Illinois
>Divorce & Social Security – Can I Collect Under My Ex Spouse’s Social Security?
>Nine Factors for Changing Alimony
>Grand Parent & Step-Parent Visitation

>Can I Get Divorced if I Don’t Know Where My Spouse Lives?
Answer: Yes. The Court has jurisdiction to go ahead and dissolve the marriage by virtue of your residency within the state. However, it cannot order your spouse to pay or do anything until it gets jurisdiction of your spouse. Once your ex is located and lawfully served with Summons, the court may revisit the initial divorce case and make its rulings on all of the remaining items.

>Can My Spouse Stop Me from Getting a Divorce?
Answer: No. You do not need your spouse’s consent to get a divorce.

>Do I Have to Live in Illinois before I Can File? 
Answer: No. You can file for divorce on the day you move into Illinois, or before you actually move into Illinois, provided you are a continuous resident of Illinois for 90 days prior to your court hearing.

>Can I Get Divorced in Illinois if I Got Married in Another State or Country? 
Answer: No, but what does matter, is where you and your spouse reside at the time of the divorce.

>Must I Remain in Illinois until the Divorce is Final?
Answer: No. You can file for divorce on the day you move into Illinois, or before you actually move into Illinois, provided you are a continuous resident of Illinois for 90 days prior to your court hearing.

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>Pre-Marital / Ante-Nuptial Agreements
>Post-Nuptial Agreements

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We welcome hearing from you and we invite your questions. There is no obligation. No one will ever know that we spoke or what we discussed. Everything you say is privileged, confidential, and completely classified. We do not maintain a mailing list and will not contact you unless you ask us to.

Calling us is easy – ask for Kari or Richard @ 630-928-0600. 

If we are in court or in a meeting when you call, one of us will personally get back to you as quickly as possible. We are extremely discreet with callbacks and reply emails. Just leave your name and a secure email address or personal cell phone number.

Richard and Kari are staunch advocates of the non-court approach to divorce, and are also active and seasoned litigators with over 80 years of combined trial experience in the Illinois divorce courts of Cook and DuPage counties.