The Divorce process in Illinois is guided by a statute entitled "The Illinois Marriage and Dissolution of Marriage Act" 750 ILCS 5/401 et. Seq. All issues affecting families in divorce are provided for in this statute including issues affecting children, distribution of property and issues of support and maintenance.
A divorce case is commenced by the filing of a document entitled "Petition for Dissolution of Marriage." Once filed, the other spouse will either need to be served with the Petition by the Sheriff or private process server, or alternatively the spouse can file papers individually or through an attorney submitting himself to the jurisdiction of the Court.
A divorce case can be divided into three phases: the "temporary" issue phase, the "discovery and investigation" phase, and the "resolution" phase. The first phase involves the determination of the immediate or temporary issues. These issues can involve:
- Temporary custody
- Temporary support and/or maintenance
- Where the parties are going to reside pending the resolution of the case
- Protection from harassment and domestic violence
- Injunctions against financial improprieties
The Court has wide latitude in resolving these temporary issues. Ordinarily the Courts favor a policy of maintaining the status quo. A spouse does not have to move from the marital residence unless there harm to the other spouse or children as a result of the cohabitation.
Frequently people can resolve many of these issues on their own or informally through their Attorneys. Occasionally, however, it is necessary for the Court to resolve the issues and a Court hearing is necessary. In that event the Court will enter a Court order which will be binding on the parties until either the case is dismissed or a final Judgment or settlement is reached.
The middle or "investigation and discovery" phase of the case involves the identification of the contested issues, and a determination of all of the assets, income and debt of the parties. With regard to custody issues, it is vital to determine early in the case whether the parents are contesting the physical custody of the children. In that event, various options are available. The Court ordinarily will require parties involved in a contested custody proceeding to attend mediation. Mediation is an alternative dispute system that employs a trained family law mediator acting as an intermediary who attempts to resolve the dispute. This person does not report to the Court except to advise the court whether a settlement is reached. Discussions with the mediator are not reported to the Court.
Additionally the Court may appoint a Guardian Ad litem for the Children. The Guardian advocates in Court for the children's best interests and will investigate and report to the Court regarding the facts and circumstances in dispute. Often the Guardian will make recommendations to the Judge. Also, the Court may appoint a psychologist to do a psychological profile of the family to help the Judge make a decision concerning the best interest of the children. Virtually all divorce issues affecting children are guided by a "best interest of the child" standard.
When lawyers start to prepare a case for settlement or trial, they employ various investigation devices both formally and informally. For example, the law allows a party to ask the other party written questions under oath. Also, the allows for a deposition which is an informal proceeding in the Attorney's office which allows the Attorney the right to ask the other party "face to face" questions. Informally, subpoenas can be served requesting information from third parties, and private investigators can be employed to obtain information.
Oftentimes, experts need to be employed both as consultants and witnesses. Lawyers use experts to provide help in a number of ways:
- value retirement benefits
- do sophisticated accounting or tracing of money
- financial planners to determine future economic circumstances
- business evaluators to value businesses
- psychologists to testify to mental health issues
- realtors to value real estate
Experts can provide an essential component to the understanding of the issues in the case.
Depending on the complexity of the issues or the assets, this phase of the case can go quickly or over a more extended period. This phase is typically the most time consuming. Where issues are simple and assets and their values readily identifiable, the phase can virtually be eliminated.
The final phase of the case involves the resolution of the case either through settlement or trial. The vast majority of all cases settle. A settlement depends more on the parties or their attorney's willingness to settle, as opposed to the issues involved. While some issues need to be tried such as significant issues involving custody; most issues can be resolved through compromise and common sense. Spending thousands of dollars in legal fees fighting over hundreds of dollars in assets is a foolish waste of money. Our firm encourages settlement where possible. In this regard, we frequently have 4-way settlement conferences where the parties and lawyers meet to explore settlement options. Also, written negotiations are sometimes used as well. Each case has a unique dynamic and settlement tools depend on this dynamic.
Often times where a legitimate dispute is involved, the Judge will meet with the lawyers in chambers to discuss the issues and to make settlement recommendations. This is called a settlement conference or a pretrial conference. These conferences are helpful because the judge who makes the recommendation will be the same person who will try the case if necessary. Accordingly the resolution can be reached without the formality of a trial.
Cases that can't be settled are tried before a Judge without a jury. Evidence is presented to the Judge concerning the facts and the issues. Law is argued to the Judge and the Judge ultimately decides the case consistent with the law and with his or her opinion as to what's fair. If the Judge makes an error in applying the law to the facts, an appeal can be taken to the appellate court asking for reconsideration.
Again, the vast majority of cases settle rather than being tried. As a rule of thumb, a good settlement is equal to or better than what the Judge will order at trial, considering the cost of Attorney fees incurred in trying the case. If the case does settle, then settlement documents are prepared incorporating the terms of the settlement. Both parties sign the agreement and a short hearing is held before the Judge known as a "Prove up hearing." At the Prove Up hearing the Judge will hear testimony from the parties concerning the facts, circumstances and settlement. The Judge has the power to reject a settlement if he or she think it is grossly unfair or "unconscionable" to one of the parties. In that event the parties would have to renegotiate to tip the scales the other way. Rarely, however, does the judge reject the settlement.
The average case lasts approximately nine months. If one settles, the case is typically over six weeks after agreeing on the terms of settlement. Cases that are tried can take several years to complete. The average resolution time for a case that is tried is eighteen months.
While this is a general overview, we hope it will give you some perspective concerning the proceeding. Obviously feel free to contact us with any questions concerning the proceeding.
