If you are like most people, chances are good that you have never hired an attorney or set foot in a courtroom. If you are planning on getting a divorce or were recently served with divorce papers, the thought of going to court can be intimidating. At Goodman Law Firm we know that our divorce clients have enough to worry about without the burden of navigating the legal system too. Below we provide a basic overview of how the divorce process unfolds once a couple decides to divorce. If you have questions about your case, please feel free to contact us. We have experience counseling men and women throughout Chicago and its suburbs.
Often there is much work being done prior to actually filing for divorce. You and/or your spouse may be consulting with a divorce attorney about your legal rights and carefully considering your available options. You and your spouse may be in couples counseling in an effort to repair your marriage or to confirm that it cannot be saved. At this step, we can help you understand your options if you choose to proceed with divorce.
Once you hire an attorney, they will likely ask you to gather as much financial information as possible before filing a Petition for Dissolution of Marriage. Then you will work with the attorney to formulate a strategy for achieving your goals in your divorce. In some cases, information gathering may last weeks or months, but in others, sufficient information may be available to immediately begin settlement negotiations with your spouse. Every situation is unique, and the manner in which your divorce proceeds through the divorce process will necessarily vary.
A divorce is officially initiated when one party to a marriage files a Petition for Dissolution of Marriage with the clerk of the court in the appropriate county. A filing fee is required to be paid by the petitioner (the party filing for divorce). The amount of the filing fee varies by county. If your spouse is cooperative and amicable, this step may be postponed until you reach a full settlement or your settlement discussions stall.
A summons can be issued at the time of filing permitting the divorce papers or petition to be served on the other spouse (aka the respondent). Service is usually accomplished by the Sheriff or a private process server. Formal service can be avoided if the responding party files an appearance. An appearance is a document filed with the court notifying the court whether the responding party is represented by an attorney. The responding party has about a month to prepare a written response to the Petition for Dissolution of Marriage after it is served or an appearance is entered. This response will generally explain which issues the respondent agrees upon, and which issues they will contest.
After a petition for dissolution is served, either party may ask the family law court to temporarily rule on issues such as significant decision-making (child custody), parenting time (visitation), child support, maintenance (alimony), or possession of the marital home, to name a few. Often times, parties can avoid the expense of litigating these issues by reaching a temporary agreement. Temporary orders may or may not resemble the final ruling or settlement in a divorce.
Discovery is the process of gathering and analyzing evidence in a legal case. Discovery can be ongoing until a divorce is resolved. The discovery process can be relatively short or take many months to complete. The discovery process usually begins as soon as you hire an attorney. You will be asked to gather all the pertinent information you can access, especially pay-stubs, income taxes, and bank statements. Once a petition for dissolution is filed and the response is served, then formal discovery can begin. In an Illinois divorce, discovery begins with the mutual exchange of financial affidavits. The financial affidavit is a legal document detailing income, expenses, debts, and assets and is supported by documents evidencing income such as pay-stubs and W-2s and assets such as bank statements. If necessary, the parties may engage in further discovery including interrogatories, requests to produce documents, requests to admit facts, subpoenas for documents, and depositions. This is also the time that any valuations are obtained, whether for real estate, a business, or other valuables. If decision-making authority and/or the allocation of parenting time are at issue, this is when a child’s representative or guardian ad litem may be appointed. The scope and duration of the discovery process will depend on the number of issues contested and the complexity of the marital estate. Discovery may proceed in an amicable fashion, with each spouse providing information and documents quickly and cooperatively; or discovery may be contentious, requiring court intervention to force disclosure of any requested information.
Spouses are permitted to discuss the possibility of a settlement at any time. Generally, settlement discussions take place throughout the divorce process. If a settlement is reached, an attorney will prepare a Marital Settlement Agreement, and when applicable, an Allocation Judgment (Parenting Plan). Once the paperwork is signed, a prove-up date can be scheduled with the court to finalize the divorce. Sometimes meaningful settlement discussions are stalled because one spouse has control over the key financial information and refuses to disclose it. In these instances, a judge will be asked to force disclosure of the pertinent information.
If a settlement is not reached after discovery has concluded, a trial will be scheduled. A family law court judge is likely to hold a pre-trial conference before a trial or hearing in an effort to reach a settlement agreement and avoid the expenses associated with a trial. In divorce court, a judge, not a jury, will decide your case.
After an agreement has been reached, either through negotiations or a trial, the judge will issue a final Judgment for Dissolution of Marriage. Once entered by the court, this document will legally end the marriage. It will outline how marital property will be divided, whether spousal support will be paid, as well as parenting time and support agreements for children.
Many of the actions needed in this final step, such as closing out joint bank accounts, do not require the assistance of an attorney. However, some needs, such as informing the administrators of your retirement accounts on how to divide the assets, might involve your legal team.
When the allocation of parental responsibilities (custody) is at issue, a divorce may take longer to complete. Nevertheless, pursuant to Illinois Supreme Court Rule 922, Illinois courts are required to resolve custody issues within 18 months of service of the petition. If a couple cannot agree on the allocation of parental responsibilities, court-ordered custody mediation is often the first step to resolving the parenting dispute. Regardless, divorcing couples with children are required to submit a proposed parenting plan within 4 months of filing for divorce. If mediation fails to yield a resolution, then a Guardian Ad Litem (GAL) or a Child’s Representative may be appointed to the case. A custody evaluation may also be ordered if the couple still cannot reach an agreement on their own. Ultimately, if the couple cannot reach an agreement, the court will set a trial date at which time the judge will determine the terms of the parenting plan and enter an Allocation Judgment.
If you are looking for an experienced litigator that handles family law cases as well as complex divorce cases, contact us today to request a divorce consultation.
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