The Process of Divorce
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 Petition most often is not very specific, though in some cases some detail is necessary, especially if there are issues of domestic violence or mental health issues that will be addressed in the custody part of the case. In general, Illinois requires that certain "grounds' be proven for divorce:
conviction of a felony
The vast majority of divorces do not proceed on "grounds," and the parties stipulate, or agree, to divorce on the basis of "irreconcilable differences." Although the "fault or grounds" can be proven in court, the Judge cannot consider the misconduct of a spouse when deciding the division of the marital property, and will not consider adultery as a factor in the custody determination, unless the adulterous parent's behavior has had a direct and adverse impact on the children or the parenting.
Serving the spouse with the Petition
Once the Petition is filed, the Respondent needs to be formally served with the Petition. In many cases, it is not appropriate to serve a spouse at work or during a family gathering, a circumstance that only creates embarrassment and hostility. Unless the case involves domestic violence or other extraordinary circumstances, a private process server can be directed to serve the party in a private setting, or if the party already has engaged an attorney, the attorney can be asked to accept service. Once the party is served, they are required to file a response to the Petition.
Discovery is the process of obtaining information from the other party. 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. This process includes formal requests for documents, written questions, subpoenas to employers, and depositions taken under oath.
Either party can ask the court to enter temporary orders regarding such issues as who stays in the house, who is responsible for the children and who pays which bills. If there is a concern that one spouse may deplete, sell, take control of or otherwise encumber marital assets, a Temporary Restraining Order or Preliminary Injunction may be entered. Temporary support orders provide for 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.
Critical to many cases is the determination as to which parent will be the primary residential parent and whether a joint parenting agreement can be reached. It is our practice to approach these custody issues with great care. Unless the parties agree on the primary parent, and agree on the parenting plans and schedules, it is the preference of this office to petition the court during the divorce to appoint a child's representative to monitor and represent the children's interests during the case, and to then petition the court to appoint a custody evaluator to conduct a psychological evaluation of the parties and determine the custodial best interests of the child or children. The evaluator is officially the court's witness and his/her testimony carries great weight with the court regarding custody and visitation issues.
Settlement Conferences and Trial
Once discovery has been completed and the report of the custody evaluator is available, settlement discussions can prove useful. Attorneys proficient in family law are often good negotiators, and with the client's participation, can resolve issues in the case. Four way negotiations with clients and attorneys participating can yield results, and there can be some benefit to bringing the parties together to attempt to resolve the difficult issues in the case. If negotiation cannot bring the parties to resolution, the court will conduct a pretrial conference. The pretrial is really the one opportunity, prior to trial, that the parties have to present the unresolved issues in the case to the judge, and to get the judge's recommendations on the issues.
The pretrial requires care and preparation, and the trial judges in the domestic relations divisions require that the parties provide a pretrial memorandum to the court prior to the pretrial. The memorandum includes information about the parties and the children, the issues resolved, the parties' financial declarations, and the statement of the issues left for trial. Once the judge reviews the issues in the case, he or she will usually make a recommendation for settlement of the case. The judge's recommendations need to be taken seriously, and most often taken "to the bank," as the pretrial recommendations probably reflect the rulings the judge might make were the case presented at trial.
If one or both of the parties cannot resolve a critical issue in the case (such as custody or the characterization of property) the case will be set for trial.
Michael Roe would be pleased to discuss the process of divorce in Illinois, and explore strategies that suit the needs of you and your case. Call Michael Roe at (630) 232-2400 to set up an initial consultation or contact us online.