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Going through a divorce can be one of the most significant events in your life. Not only will divorce unquestionably affect a major relationship in your life, but it also has the potential to impact your financial situation, where you live, and even your ability to parent your children. These and other family law issues that are implicated by ending a marriage are serious, so we highly recommend that anyone going through a divorce should retain experienced legal counsel. A lawyer from Roscich & Martel Law Firm, LLC can help.

Learn more about common-law marriage in Illinois by reading our blog. Contact us online for any questions you have during your divorce matter.

Protecting Your Rights during Divorce

Ending a marriage is a complicated process, particularly if a couple has children or accumulated significant assets while married.

Some of the issues that need to be resolved in many divorces include:

  • Child custody: The allocation of parental responsibilities outlines a parent’s ability to spend time with his/her child and his/her right to make important decisions about the way in which the child is raised. In many divorces, child custody is the most contentious issue that must be resolved.
  • Child support: Child support payments are made from one parent to another parent to help with the costs associated with raising the child. In many cases, the non-custodial parent pays the custodial parent, but there are other arrangements that may also be implemented.
  • Division of assets and debts: Under Illinois law, the marital property owned by a divorcing couple will be divided equitably. Some of the factors that courts consider when determining how the marital property will be split include the duration of the marriage, any agreements that exist between the parties, parenting time arrangements, and opportunities for future income.
  • Alimony: Sometimes referred to as spousal maintenance, alimony involves a payment or ongoing payments made from one party to the other party in order to help with living expenses.

While working through these many issues that arise during a divorce, our lawyer in Naperville will always act in the best interest of you and your children. We understand how important your family’s well-being is and we will work diligently to help you resolve your situation amicably and efficiently.

Grounds for Divorce in Illinois

In many states, procedures are in place that allow married couples to divorce on different grounds. In the past, one side would have to prove that their partner committed adultery, abandonment, or other criminal act against the marriage contract. As many divorces are not caused by heinous acts, it became necessary to create a process of divorce which does not require such a burden of proof. In Illinois, there is a right for couples to have a no-fault divorce. But, there are certain requirements that need to be met in order to file for such a divorce. The process is as follows:

  • Residency requirement - When the time comes to file for a divorce in Illinois, one party must be able to prove they lived in Illinois for a period of at least 90 days.
  • No separation period – Illinois used to require a separation period before filing for divorce. However, this requirement was eliminated in 2016. It’s important to note though that if both spouses don’t agree to the divorce, then a 6-month separation period proves to the court that the marriage is broken beyond repair.
  • Irreconcilable differences - One party can then cite irreconcilable differences as the grounds for divorce. They must state that these disparities do exist and that no reconciliation has fixed or will ever fix these problems.
  • Court examination - At that point, the divorce court will start to examine the division of property and assets, child custody, and any spousal maintenance.

If you have been considering divorce as your only option, please reach out for guidance for your next steps. Divorce can be very tricky if you are not aware of the rules and regulations which guide it fairly in Illinois.

Joint Simplified Dissolution of Marriage in Illinois

In Illinois, divorcing couples have the option of filing a joint simplified dissolution of marriage, which is a more straightforward divorce proceeding and is available if there are no children. Our highly qualified lawyers can help you determine whether it is the right option for you and your spouse. There are several requirements that each spouse must meet in order to qualify for this type of filing:

  • Neither spouse expects or depends on the other for spousal support following the divorce.
  • Each spouse has been a resident of the state of Illinois or stationed in the state by the military for at least 90 days before the petition is filed.
  • Irreconcilable differences caused the divorce petition, and the couple has been separated for six months or more, and further attempts at reconciliation will have a negative effect on their family.
  • No children were born of this marriage and the wife is not pregnant at the time.
  • The marriage did not last for longer than eight years.
  • Both parties waive any right to maintenance.
  • The total fair market value of all marital property is less than $10,000, the combined “gross annualized income from all sources” is less than $35,000, and neither spouse's annual income from all sources is more than $20,000.
  • The spouses have disclosed to each other all assets and all tax returns for the years during the marriage.
  • The parties have disclosed a written agreement between themselves dividing up any assets worth more than $100, and they have set up an agreement to allocate all debts and responsibility between them.

A joint simplified dissolution of marriage is not for every couple. In order to determine what kind of divorce you and your spouse qualify for, contact one of our attorneys for a consultation today.

The Divorce Process in Illinois

The process for filing for a divorce in Illinois may follow all or some of these steps:

1. Petition for dissolution - The petition is the original document that is filed with the Clerk of the Court identifying the parties, where they live, when and where they were married, the names and ages of their children, and their places of employment. It also lists any requests to provide child support, maintenance, and division of marital assets and asks the Court to dissolve the marriage.

The cost to file the petition is:

  • $225.00 in Kendall County
  • $303.00 in Will County
  • $306.90 in Kane County
  • $292.00 in DuPage County

2. Service - Your spouse is served with a copy of the petition for dissolution. By law, this can be done by the sheriff or a special process server delivering a copy of the petition to the residence or place of work of your spouse. Alternatively, you can give it to your spouse or your spouse can pick up a copy of the petition at our office.

If service is not done by the sheriff or special process server, your spouse will be asked to sign an appearance form and tender a check in the amount of:

  • $125.00 in Kendall County
  • $188.00 in Will County
  • $191.90 in Kane County
  • $177.00 in DuPage County

Checks must be payable to the “Clerk of the Court.” Your spouse’s appearance may be filed by us with the Clerk of the Court. If your spouse does not respond to this alternate form of service within a reasonable amount of time after the petition is filed, we will make arrangements to send the petition with a summons to the sheriff for service as required by law.

3. Response - This is a document that will be filed as an answer to the petition for dissolution (or a legal response to any associated petition or motion). It will admit the facts that are alleged in the petition which are true and will deny other certain issues, including parental allocations, the need for child support or maintenance, and a request to pay attorney’s fees.

4. Status dates - When the petition for dissolution is filed, it will be assigned a number, a judge, and an automatic status date. This date may be two to four months following the date in which the petition was filed. Typically, the court requires a status date every month thereafter. At status dates, the attorneys appear before the judge to advise the status of the case and to ensure that the matter is moving forward to resolution. The parties are not required to be at court unless it is set for hearing or other concern, but clients are always welcome to attend.

5. Discovery - This is the process by which we determine what property is owned by the parties and other important facts concerning the issues of the case. This may include requests for a financial affidavit, a notice to produce, interrogatories, subpoenas, and depositions.

6. Pre-trial conference - This is a settlement meeting in the judge's chamber with the attorneys of the parties. The judge will hear an informal discussion of the concerns of the parties and the issues remaining and will attempt to make settlement proposals for the parties to consider. This conference is done with the judge who would hear a trial of your case. At the conclusion of the pre-trial conference, it is hoped that negotiations can occur so progress can be made toward settlement of the case.

7. Marital Settlement Agreement (MSA) and Allocation Judgment (AJ) - The MSA and AJ are negotiated agreements between the parties that resolve all of the issues of custody, support, maintenance, visitation, and division of marital and non-marital assets. These documents will be presented to the court at the prove-up and will be included in the judgment for dissolution.

8. Prove-up - The prove-up is the brief hearing before the court upon the completion of a divorce which is resolved by agreement of the parties. At the prove-up testimony, the Petitioner states the allegations which that were set forth in the original petition; the MSA and AJ (if not previously entered) are identified and admitted into evidence; and the parties each are heard to testify to their acceptance of the agreement and their willingness to be bound by it. The judge will make findings regarding the dissolution of the marriage and incorporation of the agreements into the judgment of dissolution.

9. Trial - In the event the parties are unable to reach an agreement on MSA and AJ, the matter will be set for trial and evidence will be presented to a judge, without a jury, regarding assets of the parties, income, living expenses, needs of the children, and other issues that the court must decide. At a trial, the judge will resolve all issues not stipulated and agreed to by the parties. The judge's determination is final.

10. Judgment of dissolution - This is the decree that is signed by the judge officially dissolving the marriage.

11. Support order - If you or your spouse is required to pay support to the other for the benefit of your spouse or children, this support may be paid through the State Disbursement Unit (SDU), a payment clearing house. The Clerk of the Court and SDU keep records of all payments made.

12. Order of withholding - This order is required to be entered whenever support payments must be made for the benefit of a spouse or children. A support order of withholding is entered at the time of the entry of the judgment of dissolution. This order requires the employer of the payer to withhold the support amount from the employee's paycheck and forward the amount to the payee via the SDU.

13. Qualified Domestic Relations Order (QDRO) - In the event either spouse is a participant in a retirement plan, profit sharing, or pension, it may be agreed by the parties or the court may order that the non-participant spouse in the plan be given an amount or percentage interest in that profit sharing or pension plan if, as, and when the employed spouse receives benefits. The order providing for division of the plan is entitled a Qualified Domestic Relations Order (QDRO). Pursuant to federal law, the entry of a QDRO and the transfer of such monies does not cause an early withdrawal penalty or tax consequence. QDRO’s are typically done at or just after the entry of the judgment of dissolution.

Can I File for Divorce if I'm Pregnant?

Yes, Illinois law allows for any woman that is pregnant to file for divorce without having to prove fault. The state of Illinois also says that a woman's husband is presumed to be the legal father of any children she births while married. Those children will be entitled to financial and medical aid from the father until the age of 18 or have graduated high school.

What is Considered Legally Separated in Illinois?

Illinois allows for a couple to file for legal separation, however it is rarely used when compared to divorce. When a court approves of a legal separation case, the spouses will agree to live separately from one another, both physically and financially. However, this does not legally terminate the marriage itself, so they are not eligible to get remarried until they are officially divorced.

What is a Motion for Default in a Divorce?

A motion for default is important because it allows you to move your divorce case forward in case your spouse doesn't respond to your original divorce petition. Certain procedures for motions of default are slightly different for Illinois, however the bulk of the process remains the same. There are four main steps to follow to get to a motion for default in a divorce:

  1. You must serve your spouse. This must be done by someone other than yourself; your local sheriff can do this for you, especially if you believe your spouse to be hostile. If your spouse does not respond within 30 days you are allowed to file for default.
  2. Next, you will need to file the certificate of dissolution, motion for default, and noticing of hearing forms. There is a small fee involved and you will have your court hearing date mailed out.
  3. Once you are aware of the court date, a hearing will take place where a judge will either grant or deny the motion.
  4. The final step is the consideration phase. The judge has the right to revoke the initial default divorce if the other spouse petitions within 30 days, explaining why he or she had a valid reason to not accept.

Call (630) 793-6337 to Speak With Our Naperville Team

If you are considering divorce, have already filed, or suspect that your spouse is going to file for divorce soon, you should consult with an attorney right away. At the Roscich & Martel Law Firm, our Naperville lawyers provide effective and compassionate legal advice and representation to clients throughout DuPage County.

Further reading: How to Get an Annulment in Illinois

To schedule a free consultation with one of our attorneys, contact our office today at (630) 793-6337.

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