Divorce Explained|Illinois|DPG Family Law

PRACTICE AREAS

Divorce, separation, maintenance, property division, custody, visitation, parenting time

Premarital and Postnuptial Agreements

DIVORCE IN ILLINOIS

anchor divorce

What Is The Purpose Of A Divorce?

In the U.S., a divorce (known as a dissolution under Illinois law) is the means by which the marriage between a couple is legally terminated. A judgment for divorce means that the parties have reached an agreement or, if the parties cannot agree, a judge has made a decision regarding parental responsibilities for the children of the marriage and the couple’s financial affairs. Following a divorce, each party is free to remarry and is also able to resume a former (maiden) name.

Other issues to consider before the divorce is final are the needs for medical insurance or life insurance, obligations on a mortgage if one party stays in the marital home, and tax implications of property division or financial awards.

Residency And Fee Requirements

If a couple decides to divorce, there are a number of steps they must take before the divorce can be granted. Their first step is to file a petition for divorce. In Illinois, there is no waiting period to file a petition: it can be filed as long as one of the spouses legally resides in the state on the day of the filing. The actual divorce, however, can be granted only if he or she legally has resided in Illinois for 90 days before the judgment. After a petition for divorce is filed, temporary orders often will be entered into and will address maintenance (formerly called alimony), visitation, and child support; and these may remain in effect until the divorce is final.

The fee for filing the divorce petition is different in each county. If a person cannot afford the filing fee, a fee waiver is possible.

Grounds For Divorce

Before a judge will grant a divorce, a spouse or both spouses must prove grounds. The only grounds for divorce recognized in Illinois is irreconcilable differences, which some people call no fault divorce. Illinois law defines irreconcilable differences as the “irretrievable break-down” of a marriage. In such a case, the spouses are required to prove to the judge’s satisfaction that there is a breakdown in the marriage, that all efforts at reconciliation have failed, and that future attempts to reconcile would not be “in the best interests of the family.” Irreconcilable differences can be proven by showing that the parties have lived separately for at least six continuous months prior to the divorce action. Living separate and apart does not necessarily mean that you and your spouse cannot be living under the same roof.

Serving Your Spouse With Divorce Paperwork

Illinois state law, requires your spouse must be informed of any pending legal action. You must "serve" your spouse with a notice of divorce or service of process.

Your spouse may be served by the following methods:

Designated Server

Your attorney may secure the services of a county sheriff to serve divorce papers. Another allowable option is using any Illinois citizen over the age of 18 who is court appointed.

The designated server may also require process protocol by leaving the summons at the home of the defendant either with a family member or person residing at the residence. The recipient must be at least 13 years old, and must be informed of the contents of the summons. If this option is used, the server must also send a copy of the summons in a sealed, postage paid envelope.

Appearance

If your spouse is aware of your attentions, he or she may make "appearance" or physically retrieve the summons from a designated location, and then file an appearance document with the Clerk of Court stating that he/she is aware of the proceedings and will be representing themselves; or an attorney will be their representative. By your spouse or their attorney voluntarily filing an appearance, your spouse does not have to be served by a designated server.

Service By Publication

The use of service by publication is often used when the defendant spouse can not be located. The petitioner who has made a good faith effort to locate the missing spouse can opt to place an advertisement in the local newspaper where the divorce action has been filed. To use service of publication, approval of the court is granted only after a diligent search has been made for the missing spouse.

After Your Spouse Is Served

Once the requirements of serving your spouse have been satisfied, he or she legally has a 30 day window to formally file a written Response to Petition and file their appearance in the matter, or have their attorney file an appearance.

If your spouse declines to file a formal Response, your attorney may file a default judgment with the court. By doing so, your attorney is providing notice to the court that your spouse has declined to acknowledge the summons. If this is the case, the judge will move equitably divide the marital property and grant a divorce.

How To Finalize A Divorce:

Trial, Agreement, or Default

Although most couples who are divorcing have disagreements about certain issues, these disputes usually are resolved through negotiation, and advice from lawyers and a judge (by having hearings on specific issues during the divorce). Most divorce cases ultimately are settled by agreement, in part because going to trial can be expensive. Some divorces are considered uncontested, and can be fairly quick and painless.

Among the issues that must be settled before the divorce can be granted are the following:

division of property—real estate, investments, money;

division of debts;

whether or not one person will have to pay maintenance to the other, and if so, how much and for how long;

if there are children, what the custody and visitation arrangements will be; and

what financial obligations each person will have to the children.

When you are filing for divorce, typically, one party files a petition with the court and the other party responds to the statements and allegations in the divorce papers. However, in some instances, the spouse receiving the divorce papers does not respond. As long as your spouse has received the divorce papers and they have been delivered to him or her in a way prescribed by the law—for example, served by a sheriff or process server—then you may be able to get a divorce by default, which is to say, you can proceed with the divorce without involving your estranged spouse.

All Marital Property Is Subject to Division

If the parties do not reach agreement, a trial will be held in front of a judge, on how property should be divided.

Property includes real estate, furniture, cars, savings accounts, stock portfolios, retirement savings and other assets. Anything that is acquired during the marriage, unless it was a gift, inherited or specifically excluded by a premarital agreement, is considered marital property, regardless of who earned the most money while the parties were married. The court may also consider the increase in value of non-marital property during the marriage as marital property. Unlike some other states, Illinois law requires that all marital property, including debts, be divided “equitably,” not “equally.”

In determining what is equitable, the financial or other contribution each party had made to acquiring property is considered, along with each person’s financial circumstances and the likelihood with each party will acquire assets in the future. The court may also look at whether a party used marital income for purposes not related to the marriage, the duration of marriage, and the custodial provisions for any children of the marriage, among other factors. Marital property may be divided when the judgment is rendered, or there may be provisions for payments to be made over a period of time.

What is Non-Marital Property?

Non-Marital Property: All property acquired by either spouse after marriage is presumed to be marital property. The presumption may be overcome, however, by "clear and convincing evidence" that property is non-marital in character. Non-marital property is:

premarital property owned free and clear prior to the marriage, but contributions made to retirement plans during the marriage are marital property 750 ILCS 5/503(a)(6); and property acquired shortly before the marriage does not become marital property just because it was acquired "in contemplation of the marriage" 750 ILCS 5/503(a);

property received as a gift 750 ILCS 5/503(a)(1);

inherited property 750 ILCS 5/503(a)(1);

property acquired in exchange for non-marital property 750 ILCS 5/503(a)(2);

property acquired after a judgment of legal separation 750 ILCS 5/503(a)(3);

property excluded by a valid agreement 750 ILCS 5/503(a)(4);

property acquired by one spouse by a valid judgement against the other spouse, unless the suit is required to obtain insurance coverage or recover from a third party then any portion of the judgment directly related to amounts advanced by the marital estate is marital property 750 ILCS 5/503(a)(5);

property acquired through a loan collateralized by non-marital property; except that to the extent the marital estate repays the loan those payments will be treated as contribution from the marital estate to the non-marital estate subject to reimbursement 750 ILCS 5/503(a)(6.5);

the increase in value of non-marital property except the marital estate will be entitled to a right of reimbursement for any contribution of marital property or personal effort of a spouse 750 ILCS 5/503(a)(7);

income from non-marital property remains non-marital if it is not attributable to the effort of the other spouse 750 ILCS 5/503(a)(8).

If you can convince a judge that certain property is non-marital, then you have a great claim as to why you should be entitled to 100% of the property, and why it should not be divided with you spouse! Check out our reviews to see why people trust us for their divorces!

Custody and Visitation

(Allocation of Decision Making Authority and Parenting Time)

Some of the most painful and expensive disputes that divorcing parents experience involve parenting rights and responsibilities. A judge may require couples who have disagreements about these issues to attend parenting programs or participate in mediation. Some courts may require all parties to attend classes concerning the effects of divorce on children. If the judge appoints an attorney to represent a child in a contested case, the parents will be responsible for paying the fees of that attorney, as well as their own attorneys’ fees.

In making decisions regarding children of the marriage, the court will consider the allocation of various parental responsibilities, including the ability to make decisions about educational, health, and religious matters for the child. The court will consider what is in the best interests of the child, as well as any agreements made between the parents. All parents, after the filing of a divorce action, will be required by the court to file, either separately or jointly, a proposed parenting plan.

Child Support and Maintenance

maintenance

Temporary orders and/or the judgment for divorce may call for payment of child support and/ or maintenance.

Both parents have an obligation to support the children. The goal of Illinois law is to calculate child support based upon the parent’s combined adjusted net income estimated to have been allocated to the child if the parents and children were living in an intact household. Child support is always modifiable, however, should there be a substantial change in circumstances. Click here to learn about Child Support.

The obligation to pay child support continues until a child reaches 18 or graduates from high school. Both parents may also have an obligation to contribute to a child’s post-high school education.

The court will make the determination whether or not the payment of maintenance to one spouse is appropriate. If maintenance is appropriate (depends on if one spouse is financially dependent on the other spouse), the court will follow statutory guidelines as to how much maintenance is paid, and for how long. Under that guideline, the maintenance award will generally be calculated as 33% of the paying spouse’s net income minus 25% of the receiving spouse’s net income. The length of time maintenance will be paid depends on the length of the marriage. In regards to taxes, maintenance is nether deductible by the payor or included as income for the payee.

The duration of maintenance payments is calculated by multiplying the length of the marriage at the time the action was commenced by whichever of the following factors applies: less than 5 years (.20); 5 years or more but less than 6 years (.24); 6 years or more but less than 7 years (.28); 7 years or more but less than 8 years (.32); 8 years or more but less than 9 years (.36); 9 years or more but less than 10 years (.40); 10 years or more but less than 11 years (.44); 11 years or more but less than 12 years (.48); 12 years or more but less than 13 years (.52); 13 years or more but less than 14 years (.56); 14 years or more but less than 15 years (.60); 15 years or more but less than 16 years (.64); 16 years or more but less than 17 years (.68); 17 years or more but less than 18 years (.72); 18 years or more but less than 19 years (.76); 19 years or more but less than 20 years (.80). For a marriage of 20 or more years, the court, in its discretion, shall order maintenance for a period equal to the length of the marriage or for an indefinite term.

To read the factors considered by a Court in determining whether maintenance is appropriate, please click here.