The Divorce Process
Divorces are as individual as the parties involved. There are some who come into the office with an oral agreement, which is reduced to writing, called a Marital Settlement Agreement and brought to the Court for a prove up, if no children, within 60 days. If there are children, the process is more complicated, and the Court will not hear financial issues or divide property until there is a Parenting Plan Order put in place resolving the issues impacting the children. It can take months to complete the entire process. By law, it is to be completed within 18 months, but it can take longer, for good cause.
The financial aspect of the divorce can sometimes fall into place once the Parenting Plan Order is in entered. However, there is no typical scenario. There are many variables, such as length of marriage, diversity of assets, amount of debt, whether experts will be employed, each party’s personality, the personality of the opposing attorney and even the Judge, and all in different combinations, which makes each divorce unique. Thus, it is impossible to predict how long each party’s divorce is going to take or how it will ultimately resolve.
I am committed to make the process as simple and efficient as possible for you.
People have become more transient for many reasons. One result is that all fifty (50) states have tried to make their domestic relations laws more uniform, including, but not limited to the Uniform Child Custody Jurisdiction Act. However, there are still some differences.
What happens in a divorce?
Brief overview of what happens during the divorce process
Filing the Divorce Petition
Before any couple can begin the divorce process, one spouse must file a legal petition with the Court asking to end the marriage. That spouse must be a resident of the State of Illinois at least 90 days prior to filing his/her petition. If that spouse is indigent, pursuant to the statutory definition, which includes being a recipient of public aid, they may qualify for a Fee Waiver. A Fee Waiver forgives any and all court fees, service process fees, mediation fees, and potentially all or some of the Guardian ad Litem fees.
Serving and Wait for a Response
Your spouse can be formally served by a private process server or a sheriff’s officer. A third option is to pick up the papers at the attorney's office and sign a receipt acknowledging receipt of the papers. In whatever manner the person is served, an Affidavit of Proof of Service must be e-filed with the Clerk of Court. Your spouse has 30 days from service or receipt of your Petition to file an Answer to your Petition.
Requesting of Temporary Orders
When filing a divorce, the Court allows you to make a request to resolve on a temporary basis certain matters, such as allocation of parental responsibilities (formerly known as custody), child support, and spousal support (also known as maintenance and alimony). If asking for financial relief, you must file a Financial Affidavit with supporting documentation. Other temporary orders can be injunctive orders and status quo payments. The Court will hold a hearing before deciding how to rule on your petition, unless the parties can reach an agreement, which is often the case.
If there are children, the Court will deal with this issue before dealing with the parties’ financials as a lot of the financials flow out of the children’s issues.
What use to be known as “Custody and Visitation” is now “Allocation of Parental Responsibilities.” It is a change of philosophy, which will not be discussed here, but is intended to keep both parents involved in the children’s lives. At the first court appearance, the Court will inquire if there is an agreement with regard to the allocation of parental responsibilities of the children. If not, the parties will be sent to mediation with an assigned mediator. The costs are usually divided equally between the parties and the process usually takes about thirty days to complete the required minimum three hours. The mediation session is completely confidential so the parties can speak freely. The mediator is trained to assist the parties get past roadblocks to an agreement.
Mediation has a high success rate. Even if the parties cannot come to a full agreement, mediation is usually successful in sorting out and allocating holidays.
If mediation is unsuccessful, the Court may appoint a Guardian ad Litem to represent the children. A Guardian ad Litem is another attorney with special training, who will do an investigation and provide a report to the Court, which includes recommendations. The investigation could take several months, and the scope and depth of investigation varies with the Guardian ad Litem. The parties will share the cost of the Guardian ad Litem as determined by the Court, starting with an initial retainer of $2,500.00. Every three months the Guardian Ad Litem will file a current petition for fees, which must be approved by the Court before it can be enforced against the parties.
Negotiating a Settlement on Finacials
It has been statistically proven that parties who come to an agreement are more likely to stand by their agreement, then when a Court issues a ruling. So, every effort is made to settle. There are few couples who are able to put aside their emotions in order to communicate well enough to arrive at an agreement. However, agreements can still be negotiated with the assistance of the attorneys.
There are times that exchanging written proposals is effective, although time consuming. At other times, the attorneys will use a settlement conference or a more formal financial mediation conference, which is monitored by a retained mediator. And ultimately, there can be an informal meeting with the Judge, called a Pre-Trial, where he/she is presented with the issues and will give recommendations which may settle the case. If the parties truly want to settle, it can be accomplished. Even a partial agreement can reduce trial time, so every effort is made to do so.
However, one of the key elements to a successful negotiation is that each party knows and understands the values of their assets and debts. Therefore, the attorneys usually propound discovery, which is a series of questions to be answered and a request for the turnover of documentation shortly after filing the Petition for Dissolution, such as bank account statements, credit card statements, and retirement statements. This information is then reviewed and analyzed prior to negotiating. And while this process may appear to be simple and straightforward, it is this process that an attorney gets the most complaints, as it is stressful and annoying, but nonetheless necessary.
If all negotiation attempts fail, the parties ask the Court to make the decision, which means going to trial. A trial can be on all the issues, or just on those issues that were not settled. There will be discussion of the trial strategy including, but not limited to, whether there will be witnesses called and who they would be; whether there is a need to call expert witnesses on specialized issues; determination and preparation of exhibits; and what elements of the law that must be proven to prevail. A divorce attorney, such as Attorney Faye M. Lyon, will make sure that you are well prepared for all aspects of the trial.
Judgment of Dissolution
The final step of divorce comes when the Judge signs the Judgment of Dissolution and Order on Remaining Issues.
This document ends the marriage and defines the specifics of how the ex couple will allocate their assets and debts.
Talk to Divorce Attorney Faye M. Lyon
She has extensive experience, knowledge and determination to fight for your best interests.