The Divorce Process
The “Divorce Process” can be one of the toughest life experiences anyone can endure. A typical divorce is comprises of approximately six phases and which include:
Step One: The Petition
The first step in the process of divorce is the filing of a Petition for Dissolution of Marriage. The person who files the Petition is identified as the Petitioner and the spouse is identified as the Respondent.
A Petition for Dissolution of Marriage sets forth several basic facts about you, your spouse and your children. The document itself is public record. Therefore, the Petition is usually very brief, often only two or three pages in length, and does not contain a great deal of very personal information.
The Petition must state the "grounds" for the divorce. In Illinois, divorce can be granted based on either "fault" grounds or "no fault" grounds. The statute governing divorce is very specific about what type of conduct constitutes "fault" and what conditions must exist under the "no fault" ground. The Illinois version of the "no fault" ground is entitled "irreconcilable differences." In Illinois, irreconcilable differences is the most commonly used ground for divorce because it negates the need to air anyone's dirty laundry in open court. The person who files the Petition does not receive any type of preferential treatment from the Court. Which party files first is irrelevant.
The "fault" grounds for divorce in Illinois are: adultery, bigamy, physical cruelty, mental cruelty, desertion, drug addiction, conviction of a felony and/or impotency. Although “fault” must be proven in court, the Judge cannot consider the misconduct of a spouse when deciding the division of the marital property.
Step Two: Service of Process
Once the Petition is filed with the Court, due process requires that the Respondent be "served" with the Petition and a Summons to Appear. Clients are often highly concerned about how their spouse will be “served”. Initially, we use the local sheriff’s office to effectuate service of process on a spouse. If unsuccessful, we then turn to one of our trusted private process servers who handle our service of process in an expeditious and professional manner.
Step Three: The Response
Once served, your spouse has 30 days to file an Appearance and a written Response to the Petition. Most commonly, the spouse retains counsel very shortly after being served with divorce papers. If he/she fails to file a formal Response, the Petitioner may request that the Court enter a "default judgment." In default cases, proof is presented to the Judge showing that the Respondent was aware of the Petition and he/she has failed to answer. The Judge will then grant the divorce.
Once a Response has been filed, the attorneys can discuss whether temporary support needs to be ordered. Temporary support is the payment of child support, maintenance and marital expenses during the pendency of the divorce case. In many cases, the spouses live together while the divorce is pending and continue handling finances in their usual manner. Thus, temporary support orders are not needed. If the spouses are not living together and/or sharing expenses, the court can order that specific amounts be paid for child support, maintenance and marital bills. Temporary support orders can either be entered by agreement of counsel or by order of court after a full hearing.
Step Four: Financial Investigation, Negotiations and Settlements
This portion of the case involves determination of the value of the marital estate or "discovery". Discovery procedures commonly used in divorce cases include depositions, subpoenas, interrogatories and review of financial documents by accounting experts. If the assets and debts of the marriage are readily ascertainable and agreed on by the parties, they may choose to waive formal discovery. However, if either party disagrees with their spouse's estimate of value or the amount of debt attributable to each party, formal discovery is necessary and will be undertaken.
When the value of the marital estate is determined, negotiations for settlement commence. Sometimes an agreement regarding division of the marital estate and issues related to child custody can be achieved quickly and easily between the parties. Once an agreement is reached, a Marital Settlement Agreement is drafted and presented to both parties for review and signature. When the Agreement is completed and signed by both parties, it is presented to the Court along with a proposed Judgment for Dissolution of Marriage. Brief testimony is taken in court before the Judge, who reviews the proposed settlement and judgment to ensure they are equitable, and a final divorce decree is entered. In such cases, the parties appear before a Judge only once.
Custody and visitation are also issues subject to negotiation. If the parties agree early on custody and visitation, a temporary order may be entered which will stay in effect until the case concludes and a Judgment is entered. If the parties cannot agree on issues related to custody and visitation, the Court may order the parties to mediation or evaluation.
During the negotiation phase of the case, the attorneys will be required to appear in court periodically and advise the judge on the progress of the case. These court appearances are known as "status hearings."
Step Five: Pretrial Conference
If the parties are unable to reach an agreement, then the parties may choose to submit the issues in controversy to the Judge during a pretrial conference. Pretrial conferences are conducted in the Judge's chambers. Both attorneys present their respective positions to the Judge and the Judge makes recommendations for settlement, indicating how he or she would rule on certain issues if presented at trial. The Judge's pretrial recommendations are not binding on the parties but they are important because they indicate how the Judge believes the case should be settled. Pretrial conference is often the best motivation for reaching a final settlement of your case quickly.
Step Six: Trial
In the event an agreement cannot be reached through negotiation or pretrial conference, the matter is set for trial. The court's trial calendar is often booked months in advance, and parties may wait as long as 7 to 9 months for a trial date. During the months preceding the trial, your attorney will be preparing your case. Trial preparation includes interviewing potential witnesses, reviewing expert's reports, taking additional depositions, reviewing the discovery produced by your spouse, preparing exhibits and entering into stipulations with opposing counsel. A thorough preparation for trial is absolutely required to presenting a good case.
Trials range in duration from one day to several weeks, depending on the nature and complexity of the issues involved in your case. There are no jury trials in divorce cases. The decisions are made solely by the Judge. A final divorce judgment will be entered at the conclusion of the trial.