Tell Me About Divorce
The process of divorce can be one of the most trying life experiences
that a person will go through. Here are the steps in a divorce proceeding:
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 (or Plaintiff) and the spouse is identified as the Respondent
(or Defendant).
A Petition for Dissolution of Marriage sets forth several basic facts
about you, your spouse and your children. The document itself is public
record. Therefore, the Petition is usually very brief, often only two
or three pages in length, and does not contain a great deal of very personal
information (e.g., income, graphic details relating to the reason for
the divorce, etc.).
The Petition must state the "grounds" for the divorce. In Illinois,
divorce can be granted based on either "fault" grounds or "no
fault" grounds. The statute governing divorce is very specific about
what type of conduct constitutes "fault" and what conditions
must exist under the "no fault" ground. The Illinois version
of the "no fault" ground is entitled "irreconcilable differences."
In Illinois, irreconcilable differences is the most commonly used ground
for divorce because it negates the need to air anyone's dirty laundry
in open court. The person who files the Petition does not receive any
type of preferential treatment from the Court. Which party files first
is irrelevant.
The "fault" grounds for divorce in Illinois are:
- adultery
- bigamy
- physical cruelty
- mental cruelty
- desertion
- drug addiction
- conviction of a felony
- impotency.
Although the "fault" must be proven in court, the Judge cannot
consider the misconduct of a spouse when deciding the division of the
marital property.
| Step Two: Service of Process |
Once the Petition is filed with the Court, due process requires
that the Respondent be "served" with the Petition and a Summons
to Appear. Clients are often highly concerned about how their spouse will
be "served". Imagine being at work and having a sheriff appear
and serve you with divorce papers in front of your coworkers. At BRASELTON and MILLARD, we have well-established relationships with all
local sheriff's departments and private process servers who handle our
service of process in an expedient, dignified and professional manner.
Our firm strives to use the most appropriate method of service
depending on the facts of the case. For example, if a divorce is amicable
and the Respondent has already retained counsel, we will contact the spouse's
lawyer and arrange to have the attorney accept service on behalf of the
spouse. Our private process servers often contact the spouse and arrange
to meet him or her in a convenient, private location where service can
be effectuated without embarrassment. However, when there is a history
of domestic violence or substance abuse, it is often wisest and safest
to utilize the services of law enforcement personnel to effectuate service
of process.
Once served, your spouse has 30 days to file a written Response
to the Petition. Most commonly, the spouse retains counsel very shortly
after being served with divorce papers. If he/she fails to file a formal
Response, the Petitioner may request that the Court enter a "default
judgment." In default cases, proof is presented to the Judge showing
that the Respondent was aware of the Petition and he/she has failed to
answer. The Judge will then divide the marital property equitably and
the divorce will be granted.
Once a Response has been filed, the attorneys can discuss
whether temporary support needs to be ordered. Temporary support is 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. If the spouses
are not living together and/or sharing expenses, the court can order that
specific amounts be paid for child support, maintenance and marital bills.
Temporary support orders can either be entered by agreement of counsel
or by order of court after a full hearing.
| Step Four: Financial Investigation, Negotiation
and Settlement |
Financial investigation is the next step in a divorce case. This portion
of the case involves determination of the value of the marital estate
or "discovery". Discovery procedures commonly used in divorce
cases include depositions, subpoenas, interrogatories and review of financial
documents by accounting experts. 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.
When the value of the marital estate is determined, negotiations for
settlement commence. Sometimes an agreement regarding division of the
marital estate and issues related to child custody can be achieved quickly
and easily between the parties. Once an agreement is reached, a Marital
Settlement Agreement is drafted and presented to both parties for review
and signature. When Agreement is completed and signed by both parties,
it is presented to the Court along with a proposed Judgment for Dissolution
of Marriage. Brief testimony is taken in court before the Judge, who reviews
the proposed settlement and judgment to ensure they are equitable, and
a final divorce decree is entered. In such cases, the parties appear before
a Judge only once.
Custody and visitation are also issues subject to negotiation. If the
parties agree early on custody and visitation, a temporary order may be
entered which will stay in effect until the case concludes and a Judgment
is entered. If the parties cannot agree on issues related to custody and
visitation, the Court may order the parties to mediation or evaluation.
See our page entitled Custody and Visitation for further information.
During the negotiation phase of the case, the attorneys will be required
to appear in court on a monthly basis and advise the judge on the progress
on the case. These court appearances are called "status hearings."
| Step Five: Pretrial Conference |
If the parties are unable to reach an agreement, the attorneys
may choose to submit the issues in controversy to the Judge during a pretrial
conference. Pretrial conferences are conducted in the Judge's chambers.
Both attorneys present their respective positions to the Judge and the
Judge makes recommendations for settlement, indicating how he or she would
rule on certain issues if presented at trial. The Judge's pretrial recommendations
are not binding on the parties but they are important because they indicate
how the Judge believes the case should be settled. Pretrial conference
is often the best motivation for reaching a final settlement of your case
without preparing for a full trial.
In the event an agreement cannot be reached through negotiation
or pretrial conference, the matter is set for trial. The court's trial
calendar is often booked months in advance, and parties may wait as long
as five to six months for a trial date. During the months preceding the
trial, your attorney will be preparing your case. Trial preparation includes
interviewing potential witnesses, reviewing expert's reports, taking depositions,
reviewing the discovery produced by your spouse, preparing exhibits and
entering into stipulations with opposing counsel. Thorough preparation
for trial is essential to putting on a good case. It can also be very
expensive; however, if a case cannot be settled, there is no other choice.
Trials range in duration from one day to several weeks,
depending on the nature and complexity of the issues involved in your
case. There are no jury trials in divorce cases. The decisions are made
solely by the Judge. A final divorce judgment will be entered at the conclusion
of the trial.
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