File for Divorce in Illinois

Marriages don’t always last forever. When a marriage ends in Illinois, there are specific steps you must take to end the relationship legally. This article will walk you through those steps. Every case is unique, however, and specific circumstances in your case could require some variations.

Steps

Preparing for Divorce

  1. Consider hiring an attorney. Family law is very detailed and far reaching. So many different things are likely to impact your case, and judges have great latitude for discretion. If you can afford a local attorney who knows the types of things your judge favors and disfavors, it would be best to hire one. See How to Find a Good Attorney. If you cannot afford a full-service attorney, some attorneys provide “unbundled services”, which means they will provide limited services to you, such as:
    • Preparing documents
    • Giving you legal advice
    • Teaching you the law as it applies to your case
    • Coaching you through the process.
  2. Determine whether you qualify to file. To file for divorce in Illinois, you have to have resided in Illinois for at least six (6) months. Illinois is also a fault state. This means you can file for divorce immediately for mental cruelty, physical cruelty, drug addiction, or drunkenness. To file on the ground of irreconcilable differences, you must:[1]
    • Be separated from your spouse for at least two years or six months if you both agree to the divorce, and
    • State that both of you have made all efforts to try to work out your problems, and your marriage cannot be saved.
  3. Be aware of the limits, standards, and thresholds . Read the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5, as it pertains to property settlement, custody, and support. These statutes will tell you any preferences or presumptions the judge is required to make and what the terminology is for the issue(s) you have, such as:[2]
    • Unless you and your spouse agree on the division of property, the court will equitably divide your assets and liabilities.
    • Child support is based on a percentage of the payor’s net income and the number of children to be supported.
    • Child custody will be determined based upon the best interest of the child.
  4. Locate the appropriate court. Locate the District Court in your county. You will want to file your case in the county in which you and your spouse currently live. If you live in different areas, it is best to file in the county in which your spouse lives so the court will more likely have the power to order support from him or her.[3]
  5. Locate and complete the appropriate forms. Illinois Legal Aid provides an interactive program to prepare custom forms for your use at http://www.illinoislegalaid.org/index.cfm?fuseaction=home.dsp_content&contentID=1768#a=forms. You can also often get assistance finding and completing your documents at your local self-help center. The forms you need will differ depending on your particular circumstances, but at a minimum will include a summons and petition. The interactive program will provide you with the documents your individual situation requires. To use it:
    • Navigate to the Legal Aid website.
    • Answer the questions asked. They will include information about children and property.
    • Print your documents.
  6. Prepare for filing. Once the appropriate forms have been completed, you will need to sign them. Any forms that have a notary block on them will need to be signed in front of a notary. Most courthouses have a notary on staff or allow the deputy clerk to notarize documents. You can also find notary services at many places like check-cashing businesses, attorney offices, or others. Many banks provide a free notary service to account holders. Make four copies of all documents.

Addressing Common Issues

  1. Make a proposed property settlement. Illinois is an equitable distribution state. This means that unless you and your spouse agree to a property settlement, the judge will consider the factors in the statute when determining how to divide the assets and liabilities that were amassed during the marriage (note that marital misconduct is not considered). Read the statutes and search case law for specific definitions, but these factors may include things such as:[4]
    • The contribution of each party to the obtaining and maintaining property
    • The neglect of property by each party
    • The value of the property assigned to each spouse
    • The duration of the marriage
    • The relevant economic circumstances of each party, including the who should get the marital home (if either) and where the children will live
    • Any support paid or received from a prior marriage of either party
    • Any valid, prior agreement of the parties
    • The age, health, station, occupation, amount and source of income, vocational skills, employability, estate, liabilities, and needs of each of the parties
    • The custodial provisions for any children
    • Whether the property division is in lieu of or in addition to maintenance (spousal support)
    • The reasonable opportunity of each spouse for buy assets or have an income
    • The tax consequences of the property division
  2. Make a proposed parenting plan. The parenting plan will spell out the responsibilities of each parent in regard to the child(ren). It will apportion decision making (parental responsibility) and parenting time (visitation) of each parent. The interactive software package above will prepare a parenting plan for you. If you and your spouse do not agree on a parenting plan, the court will prepare one for you in accordance with the best interest of the child factors. Read the statutes and search case law for specific definitions, but these factors may include things such as:[5]
    • The wishes of the child’s parent(s)
    • The interactions and interrelationship of the child with the parents, siblings, and other persons who significantly impact the child’s best interest
    • The child’s adjustment to his/her home, school, and community
    • The mental and physical health of all individuals involved
    • The physical violence or threat of physical violence by a parent, whether directed against the child or another person
    • The occurrence of ongoing or repeated abuse or domestic violence
    • The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child
    • Whether one of the parents is a sex offender
    • The terms of a parent’s military family-care plan that a parent must complete before deployment
  3. Make a proposal regarding child support. In Illinois, child support is ordered as a percentage of the net income of the paying parent and the number of children to be supported. This ranges from 20% for one child up to 50% for 6 or more children. The court does have the ability to deviate from this percentage if the court finds that deviation to be in the best interest of the child in light of evidence about relevant circumstances. Read the statutes and search case law for specific definitions, but these factors may include things such as:[6]
    • The financial needs and resources of the child
    • The financial needs and resources of the custodial parent
    • The standard of living the child would have enjoyed had the marriage not been dissolved
    • The physical, mental, and emotional needs of the child
    • The educational needs of the child
    • The financial resources and needs of the non-custodial parent
  4. Make a proposal regarding spousal support. The court may award maintenance (spousal support or alimony). A request for maintenance must be made with the initial petition for divorce. A court will consider the all relevant factors (but not marital misconduct) when considering whether an award of maintenance, either temporary or permanent, is appropriate. These factors include:
    • The income, property, and financial obligations granted to each party in the property distribution
    • The needs of each party
    • The realistic present and future earning capacity of each party
    • Any impairment of the present and future earning capacity of a spouse for having been a stay-at-home spouse instead of pursuing a career
    • The time necessary to enable the party seeking support to become employable, including the effect of parenting arrangements on becoming employable
    • The standard of living established during the marriage
    • The duration of the marriage
    • The age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties
    • All sources of public and private income including, without limitation, disability and retirement income
    • The tax consequences of the property division upon the respective economic circumstances of the parties
    • Whether one spouse put the other spouse through school or otherwise helped him or her in his or her career
    • Any valid agreement of the parties
    • Any other factor that the court expressly finds to be just and equitable

Filing and Serving Your Divorce

  1. File your documents. Give the original and one copy of documents to the clerk of the court that will hear your case. A filing fee will be charged unless you apply and qualify for a waiver. You can ask the clerk to stamp your copies with the filing date. The clerk will also need to sign your summons, which s/he will return to you.[7]
  2. Serve your spouse. Ask the clerk to sign your summons when you file your documents. You need to make a copy of the signed summons for your records. Then, attach the original summons to the copy of the documents for your spouse. Your spouse must receive these documents within 30 days of the date the summons was issued. You will need to pay the sheriff to provide personal service of your summons and other documents on your spouse. If your divorce is all by agreement, and your documents include a waiver of service and answer, skip this step to “Schedule your hearing.”[8]
  3. Wait for the answer. Your spouse has 30 days from the date s/he was served with the complaint to file a written answer. You should receive a copy of the answer, but if you do not, call the clerk and ask if it has been received.
  4. Consider filing for default if there is no answer. If no answer was filed, consider filing for a Default Judgment. Keep in mind that not all issues may be able to be resolved by default, especially if your spouse lives out of the court’s jurisdiction. For instance, if a party in default lived in a different state, but the child was in Illinois, the court could modify the times and dates that parent was allowed to spend time with the child or what decisions that parent was able to make on the child’s behalf, but may not be able to issue an order for child support from that out-of-state parent.[9]

Managing Your Case

  1. Participate in discovery. If you need to gather information or evidence to support your case in court, you will do this via discovery. Read the rules governing discovery found in Part E of the Rules on Civil Proceedings in the Trial Court to learn about discovery techniques and processes in Illinois. Contact your local family law self-help for assistance with some of these. In general, you can require the other party or other potential witnesses to: [10]
    • Provide you with copies of documents
    • Allow you to inspect items or property
    • Require them to answer questions under oath (written or oral).
    • Depending on the issues in your divorce, you may also be able to require the other party or child to undergo psychological/psychiatric testing or an evaluation by a professional to determine what type of arrangement would be in the best interest of the child and make a recommendation to the court.
  2. Make any necessary disclosures. Throughout the case, you will need to make certain disclosures to the other party, and you should request these same disclosures if they are not made voluntarily. These disclosures may include financial affidavits if support is an issue, lists of people expected to testify at trial and what they intend to testify about, exhibits you intent to present at trial, either as evidence or for demonstration purposes. If these things are not disclosed prior to trial and the other party objects to their use, you may not be able to present them at your hearing.
  3. Read the Rules of Evidence. Be sure you understand them. If you have any questions about them, it is worth paying an attorney for assistance or instruction. You can find them at http://www.illinoiscourts.gov/supremecourt/evidence/evidence.asp
  4. Participate in mediation. In Illinois, mediation is required for any child-related disagreements. In mediation, a neutral third party attempts to bring the parties to an agreement on the issues. There is no need to bring any evidence because the mediator does not make any decisions. The intent is for both parties to compromise a little bit so that the issues can be settled without the need for a trial.[11]
    • If mediation is successful, the mediator will generally prepare the proper documents, obtain the signature of each party, and submit the documents to the court.
    • If mediation is unsuccessful, the parties simply proceed to court.
    • In Illinois, like most states, statements made in mediation are cannot be used in court and the mediator makes no statements to the court other than whether mediation was successful.
  5. Schedule your hearing. Contact the clerk of the court to schedule your hearing. You should be able to estimate to him/her the length of time you anticipate needing to put on evidence of your case. The clerk may schedule you for a scheduling conference or hearing, during which time, the judge will ask questions to be sure all issues are ready for trial and to determine how much time will be needed for the hearing. Issue any subpoenas necessary for any witnesses. You will need to provide notice of the hearing to all other parties. Ask the clerk if your court provides a form for this. Your notice should include:[12]
    • The date of the hearing
    • The time of the hearing
    • The location of the hearing
    • The judge who will hear the case
    • The length of time anticipated for the hearing
  6. Attend your hearing. On the day of your hearing, be sure you are dressed cleanly and respectfully. If you can wear a suit, do so. If not, clean clothes that would be suitable for the office are acceptable. If you can only wear jeans, be sure they are clean and in good repair. Do not wear shorts, flip flops, tank tops, miniskirts, or sagging pants. Arrive early. Speak only to the judge, not to the opposing party or their attorney. Address the judge with respect, calling him or her “Your Honor” or “Judge”. Stand when speaking. The case will likely proceed as follows, though this can vary under some circumstances:[13]
    • Opening statements of the petitioner (a roadmap of the case and what will be proven)
    • Opening statements of the respondent
    • Witnesses called by the petitioner and cross examined by the respondent.
    • Witnesses called by the respondent and cross examined by the petitioner.
    • Closing arguments by the petitioner (a summary of the trial and arguments as to why the judge should rule in petitioner’s favor)
    • Closing arguments by the respondent
    • Rebuttal by the petitioner
    • Ruling by the judge
  7. Consider appealing an adverse ruling. After the judge’s ruling, the prevailing party is usually tasked with preparing any orders. If you submitted proposed orders earlier, the judge may use those. The judge may also have stacks of blank orders on the bench that s/he fills out and signs while making the ruling. If you are tasked with preparing the order, locate the appropriate order form from the link above and complete it. Make 2 copies. File the original with the court, and send a copy to your spouse. Keep the other copy for your records. Once the judge signs the order, you can get a copy of the signed order from the clerk. If you disagree with the judge’s ruling, you have generally 30 days to file a Notice of Appeal with the trial court. Check the Civil Appeal Rules for these deadlines.[14]

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Sources and Citations

  1. ↑ http://www.illinoislegalaid.org/index.cfm?fuseaction=home.dsp_content&contentID=1768#
  2. ↑ http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2086&ChapterID=59
  3. ↑ http://www.illinoislegalaid.org/index.cfm?fuseaction=home.dsp_content&contentID=1768#s=2
  4. ↑ http://www.ilga.gov/legislation/ilcs/documents/075000050k503.htm
  5. ↑ http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000050HPt%2E+VI&ActID=2086&ChapterID=59&SeqStart=8350000&SeqEnd=10200000
  6. ↑ http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000050HPt%2E+V&ActID=2086&ChapterID=59&SeqStart=6100000&SeqEnd=8350000
  7. ↑ http://www.illinoislegalaid.org/index.cfm?fuseaction=home.dsp_content&contentID=1768#s=3
  8. ↑ http://www.illinoiscourts.gov/supremecourt/Rules/Art_II/ArtII.htm#102
  9. ↑ http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2017&ChapterID=56&SeqStart=15800000&SeqEnd=16400000
  10. ↑ http://www.illinoiscourts.gov/supremecourt/Rules/Art_II/default.asp
  11. ↑ http://www.cookcountycourt.org/ABOUTTHECOURT/CountyDepartment/DomesticRelationsDivision/Mediation.aspx
  12. ↑ https://www.rcfp.org/illinois-privilege-compendium/1-service-subpoena-time
  13. ↑ http://www.fljud13.org/Portals/0/Forms/pdfs/fiu/12rules.pdf
  14. ↑ http://www.illinoiscourts.gov/supremecourt/rules/Art_III/default.asp
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