Filing for Divorce in Illinois
- Are you eligible to file for divorce in Illinois?
- Will your partner collaborate on a settlement agreement?
- What if you can't agree on settlement issues?
- Could a professional help you collaborate?
- Steps for filing for divorce in Illinois
- Understanding financial disclosures
Divorce is stressful, and it forces you to face a lot of uncertainty. Understanding the legal aspects of filing for divorce in Illinois can help alleviate some of the fears that accompany this significant life event.
Are you eligible to file for divorce in Illinois?
Residency requirement
In Illinois, before you can file for divorce, you must meet the residency requirements set forth by the state. One of the most important prerequisites is that at least one spouse must have been a resident of Illinois for a minimum of 90 days immediately preceding the filing of the divorce petition. Why? By adhering to this requirement, the state of Illinois has legal jurisdiction over your marriage and the authority to grant your divorce.
No waiting period
Unlike some other states, divorcing couples in Illinois do not have to wait a predetermined amount of time for their divorce to be finalized. This means that once all the required paperwork is completed and submitted and both parties have reached an agreement on the terms of the divorce, the court can finalize the divorce.
However, the actual timeline for the completion of a divorce case depends on the issues at hand and how well the married couple cooperates.
Will your partner collaborate on a settlement agreement?
An uncontested divorce is a type of divorce in which spouses agree on the terms and conditions of their separation. This includes the details about their division of property, arrangements for their children (child custody and support), and any spousal support payments (alimony).
In a contested divorce, spouses require the court's intervention to settle their disputes. Without outside help, they can’t agree on all aspects of their settlement agreement.
Advantages of uncontested divorce
There are several reasons why an uncontested divorce is preferable. First, it tends to be a more amicable process, as both spouses actively collaborate to reach a mutually beneficial agreement. This cooperative approach helps keep emotional turmoil to a minimum. It may also result in a more positive post-divorce relationship between parties – an especially important factor for divorced co-parents.
Second, uncontested divorces usually require less time and fewer court appearances, which can save both parties money in legal fees and other expenses.
How to get an uncontested divorce
Each spouse must play an active role in negotiating and resolving all major issues related to their separation. Open communication, compromise, and a willingness to work together are all required.
If spouses can successfully resolve all outstanding issues and submit a written agreement to the court, the judge can review and approve the agreement without requiring a trial or additional hearings. This makes finalizing the divorce a lot easier and more efficient.
What if you can’t agree on settlement issues?
Property disagreements
Illinois is an equitable distribution state. This means the court will divide marital property fairly and equitably between the spouses but not necessarily equally. The process considers various factors, such as each spouse's contribution to the acquisition and maintenance of the property, the duration of the marriage, each person’s financial situation, and the needs of any involved minor children.
The court can also help you distinguish between marital property (acquired during the marriage) and non-marital property (owned by one spouse before the marriage or acquired through inheritance or gift). Only marital property is subject to equitable distribution.
Spousal maintenance
Alimony, also known as spousal support or maintenance, is a payment made by one ex-spouse to the other as a means of financial assistance. In Illinois, alimony may be awarded if the court finds it necessary and appropriate. What determines this? The court looks at each person’s income and finances, the standard of living enjoyed during the marriage, how long the union lasted, and each person’s age, health, and employability.
The court has considerable discretion in determining the amount and duration of alimony payments. Alimony may be temporary, reviewable, or permanent.
Child custody and support
Child custody refers to the legal rights and responsibilities of each parent concerning their children's care, supervision, and decision-making. In Illinois, courts typically encourage joint custody arrangements. Both parents share the parenting responsibilities in joint custody.
That said, the court will always prioritize the best interests of the child when making custody decisions. They will look at the child's wishes, the parent's ability to cooperate, each parent's relationship with the child, and the child's adjustment to their home, school, and community.
Child support is a financial obligation paid by the non-custodial parent to the custodial parent to help cover the costs of raising a child. In Illinois, child support is determined using an income shares model that considers both parents' incomes, the number of children, and the cost of raising children based on statewide guidelines. The court may consider additional factors such as the child's educational, medical, or other special needs when determining the appropriate amount of support.
Read about the Illinois Child Support Estimator
Could a professional help you collaborate?
Mediation
Mediation is a voluntary, confidential process in which a neutral third party, called a mediator, helps the spouses communicate and negotiate. The goal of mediation is to reach mutually acceptable agreements about issues related to the end of the marriage.
The mediator does not make decisions for the parties. Rather, they facilitate discussions, identify issues, and help generate possible solutions. Mediation can be an effective way to resolve disputes over the division of property, alimony, child custody, and other matters.
Mediation is more amicable and less adversarial than traditional litigation. Read more about it in our article, Private Mediation Pros and Cons.
Divorce lawyer
A divorce lawyer can play a crucial role in helping spouses collaborate during their divorce by providing legal advice, guidance, and representation. To learn more about collaborative divorce, which differs from litigation, we suggest reading our article, What Is Collaborative Divorce?
An experienced divorce attorney can help each spouse understand their rights and obligations under the law, identify potential areas of agreement and disagreement, and suggest strategies for resolving disputes. Divorce lawyers can also draft and review settlement agreements, ensuring the terms are legally sound and enforceable. To learn about the hourly divorce attorney services offered by Hello Divorce, click here.
Litigation
When divorcing spouses can’t reach agreements through mediation or negotiation, litigation may be necessary to complete the divorce.
Litigation involves presenting the case before a judge, who will then make decisions on contested issues such as property division, alimony, child custody, and support. Although litigation can be more adversarial and time-consuming than other methods, it provides a structured legal process for resolving disputes. Further, it gives both spouses an opportunity to present their case.
In some instances, the prospect of expensive, stressful litigation can encourage spouses to collaborate and reach agreements outside of court. This can help you avoid the uncertainties and expenses associated with a trial.
Steps for filing for divorce in Illinois
Complete paperwork
Illinois is a no-fault divorce state. This means you do not need to prove any wrongdoing by your spouse to obtain a divorce. Instead, you can simply cite "irreconcilable differences" as the reason for the dissolution of your marriage.
In some cases, spouses in Illinois can file for a simplified divorce, also known as a joint petition for dissolution of marriage. This option is available for couples who meet certain criteria, such as having no children, limited marital assets and debts, and agreeing on all the terms of their divorce. A simplified divorce can be a quicker and less expensive option for eligible couples.
File your divorce papers with the court
- Determine where to file: Divorce papers must be filed in the circuit court of the county where you or your spouse reside. To find the correct court, you can visit the Illinois Courts' website, which provides a directory of circuit courts by county.
- E-filing option: Illinois courts have a convenient e-filing system that allows you to submit your divorce paperwork electronically. To use the e-filing system, create an account on the state's e-filing portal, known as eFileIL. Once you have an account, you can upload your completed forms and pay the required filing fees online.
- Filing fee waiver or reduction: Filing fees for divorce in Illinois can vary by county. However, they may be waived or reduced based on financial need. If you can't pay the fee, you can complete an Application for Waiver of Court Fees, also known as a Fee Waiver. The form prompts you to give information about your income, expenses, and assets so the court can assess your eligibility for a fee waiver.
Serve your partner
In Illinois, serving your spouse with divorce papers is a crucial step. Proper service ensures that they are aware of the pending divorce proceedings. It gives them an opportunity to respond. There are several acceptable methods for serving divorce papers in Illinois:
- Personal service by sheriff's deputy: You can ask the sheriff's department in the county where your spouse resides or works to serve the divorce papers. A deputy will personally deliver the documents to your spouse and provide you with proof of service, typically called a "Return of Service" or "Sheriff's Return."
- Personal service by a private process server: You can hire a licensed private process server to serve divorce papers on your spouse. Like a sheriff's deputy, the process server will personally deliver the documents and provide you with proof of service.
- Service by publication: If you cannot locate your spouse after making diligent efforts, you can ask the court for permission to serve your spouse via publication. This involves publishing a notice of the divorce proceedings in a local newspaper for a specified duration. You must provide the court with an affidavit explaining the steps taken to locate your spouse and why you believe service by publication is necessary.
- Voluntary acceptance of service: In some cases, your spouse may voluntarily accept the service of the divorce papers. This eliminates the need for personal service by a sheriff's deputy or process server. Your spouse will need to sign an "Entry of Appearance" or similar form acknowledging that they received the documents and waiving their right to formal service.
Understanding financial disclosures
Financial disclosures are comprehensive statements that provide detailed information about a person’s financial situation. Details about their income, assets, debts, and expenses are included.
In the context of a divorce, financial disclosures are typically required of both spouses. This helps ensure a fair and equitable distribution of marital property, alimony, and child support.
Financial disclosures play a crucial role in the divorce process for several reasons:
- They promote transparency between the spouses, allowing each party to make informed decisions about the terms of their divorce.
- They help identify marital and non-marital assets. This is essential for determining the appropriate division of property.
- They provide the information needed to calculate alimony and child support payments based on each spouse's income and financial resources.
In most of the U.S., including Illinois, financial disclosures are required as part of the divorce process. The specific requirements and forms may vary by state or county, but generally, both spouses must complete and exchange financial disclosure documents early in the proceedings. Often, this occurs before temporary orders can be given or settlement negotiations can take place.
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