The Divorce Process
So you're thinking of getting a divorce. Perhaps you've been thinking awhile, or the idea is new. A review of the process can help guide your next moves:
When a person wants to end a marriage, she or he may file for divorce with the help of an attorney. In a divorce, the court will end the marriage and all of the legal benefits that are a part of that marriage. Some parties agree on the divorce and the terms of it. Sometimes, they don't. The most commonly argued issues are:
- Where the children should live;
- Who will make decisions for the children (allocation of parental rights, decision making- formerly known as custody);
- How much child support should be paid
- How much, if any, spousal support should be paid (this is also known as maintenance or "alimony");
- How do divide property like the marital residence;
- Who should pay certain debts like credit cards; and
- a bit more.
An attorney for the person initiating the divorce will file a Petition for Dissolution of Marriage and that party becomes the Petitioner. There are rules surrounding where you can file. The Respondent- other person in the divorce- will be served by a sheriff or special server. If not, the case may go on without them, and the court will make decisions based on what the Petitioner says.
Just because a divorce is uncontested does not mean that the settlement terms will be approved by the judge. The terms must be reasonable and cover support of the children.
Reasons for a divorce
A married couple can get divorced if they can prove to a judge there are irreconcilable differences, which means that the spouses no longer get along. Illinois is a "no fault" state, which means that it doesn't matter to the judge whose fault the divorce is, or whether there was affair. While it is can be personally devastating that one party was wronged, the judge is not allowed to consider it unless it affects the children or other issues such as property division.
If the spouses have been living in different places for at least 6 months, the court assumes that irreconcilable differences exist. The spouses do not have to prove that they can no longer get along.
What gets decided in a divorce
At the end of a divorce case, a judge will issue an order called a judgment or decree, which officially ends the marriage. The judgment also sets rules for others issues:
Child related issues: If the spouses have minor children (under 18 years old), the judge will decide parental responsibilities (“custody”). Custody covers which parent the children will live with, how often the other parent can spend time with the children and who will have significant decision-making responsibilities. The judge will also decide how much money the other parent will pay for child support. Illinois' new child support law went into effect July 1, 2017, and is a complete overhaul of what you may have expected or have been used to.
Parental decision-making "custody" issues must be decided within 18 months of the date of service of the Petition for Dissolution of Marriage, unless the judge agrees that there is a good reason to delay deciding these issues.
Marital Property, Marital Debt: Marital property is property that was gained by either spouse during the marriage. The court will divide the marital property fairly. But this does not necessarily mean the division will be equal. The court will also divide the debts owed from the marriage. Bad behavior by one or both spouses has nothing to do with how the property and the debt is divided.
Spousal support: The court will also decide if "maintenance" will be paid from one spouse to the other. Maintenance is sometimes called "spousal support" or "alimony."
How long will it take?
There is no way to know exactly how long it will take to get a divorce. The length of time depends on many things. If both spouses can agree on how to resolve the issues in the divorce case, the process will be shorter. However, if both spouses cannot come to an agreement, the divorce process will take much longer and be more costly. If the parties don't agree, it is called a contested divorce, which can take 18 months or more.
Contact Kate to talk through what your options look like. There's no fee for a consultation.
See our updated Divorce Primer:
• One-page guide, May 12, 2018 (How to support a friend going through a divorce)
• Two-part blog