What are the steps for filing a divorce?

WHAT ARE THE STEPS FOR FILING A DIVORCE?

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Are you eligible?

Before being granted a divorce, you or your spouse must have lived or been stationed in the military in the state for at least 90 days. You must also have lived separately from your spouse for at least six months when you file a no-fault divorce. This does not mean you must have lived in separate houses, but rather that you have not lived as “man and wife” due to the breakdown of the marriage. This is taken to mean that you are not sleeping in the same bed, not having sexual relations, and not conducting yourself as a married couple.

Do you need grounds?

Fortunately, in 2016, Illinois has done away with the requirement that you have grounds in order to get a divorce. In fact, I was on the committee that recommended an overhaul to the family law statutes and was primarily responsible for the drafting of a no-fault dissolution law. The result is that you now do not have to accuse your spouse of mental cruelty, infidelity, or addiction issues to get a divorce. The only ground now is “irreconcilable differences,” which means that the marriage is irretrievably broken – not that your spouse did anything to break it.

If there not a full agreement, then what comes next?

Both parties should complete a Financial Affidavit. Financial Affidavit | Office of the Illinois Courts This document tells your spouse and the judge your income, tax liabilities, expenses for you and the children, your assets, debts, and retirement accounts. You will need to produce some financial documents such as pay stubs, tax returns, bank and credit card statements. The lawyers can then engage in calculations and negotiations for the resolution of issues.

Does the court need to be involved?

Yes. If you resolve all issues, you and your spouse will sign settlement papers containing all terms of your agreements. Your lawyer will file a Petition for Dissolution which is the initiation of the “lawsuit” asking the Court to grant a divorce. Your lawyer will then arrange to have the case “proved up.” A “prove-up” is a short court appearance (usually via Zoom in Cook County) in which you and your spouse will appear with your lawyer and be sworn in by the clerk. Your lawyer will go through the terms of the settlement papers with both parties to advise the judge of the terms and to make sure you and your spouse understand them and agree to be bound by them. If the judge believes the terms are “not unconscionable,” then the settlement will be approved, the divorce granted, incorporating the agreements into a “Judgment for Dissolution,” which is your divorce decree.

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What happens if the parties don’t agree on terms of settlement?

If there are disagreements, the case proceeds like a lawsuit with motions and discovery (the process of gathering evidence through filings, subpoenas and, if necessary, depositions). I try very hard to avoid full-blown litigation as it is expensive, time-consuming, and stressful. There are tools I use to resolve issues, such as mediation, negotiation, and the use of judicial settlement conferences.

Approximately 95% of all divorce matters are settled, so it is important you retain a lawyer with not only good litigation/trial skills, but good negotiation skills. As a litigation attorney with over 35 years of experience trying cases and as a certified mediator and collaborative lawyer, I am well-suited to do both!