How is a divorce case started in Illinois?
- A dissolution of marriage (divorce) is commenced by the filing of a "petition" (legal paperwork requesting a divorce). The spouse who files is called the "petitioner." The other spouse is called the "respondent."
- The respondent spouse must be "personally served" to bring him or her within the "jurisdiction" (authority) of the court; this is also referred to as "service of process" and means that the divorce petition and summons must be personally delivered to the respondent. This may be done by the sheriff or a "special process server" appointed by the court.
- The respondent must file an "appearance" with the court, either pro se (representing oneself) or through an attorney.
- The respondent (or the respondent's attorney) must file a document known as an "answer" or "response" admitting or denying the allegations of the petition.
What happens if the respondent spouse cannot be located or tries to avoid service of process?
If the respondent cannot be found, a court may still terminate the marriage and enter divorce and custody orders and judgments. However, unless the respondent has been personally served, or has voluntarily filed an appearance, his or her property rights cannot be adjudicated, and no support or maintenance order may be entered.
What happens if the respondent is served, but does not file an appearance or an answer?
A court may find that the respondent is in "default," and the petitioner may be awarded a divorce and such remedies as maintenance(alimony), child support and property distribution.
What steps may be taken while the divorce action is pending?
During a divorce, either spouse may file a petition or motion for "temporary relief," including temporary custody, child support and maintenance. After a hearing, the court may enter temporary orders, which will remain in effect until they are modified (changed) by a court, or until the final judgment for dissolution is entered.
How does the judge know who is right or wrong?
Both parties are required to provide information and documents under oath concerning any issue relevant to the case. If there is a dispute over custody or visitation, the parties may be ordered to mediation and/or for evaluation by custody experts. The court has statutory power to appoint an independent expert to conduct an investigation and make recommendations. The parents may also seek evaluation of the children and each other by their own partisan experts. The judge has discretion as to whether or not to interview the children in camera (in chambers). The judge will hold hearings or a trial at which both parties present testimony and other evidence. The judge is required to make his or her decisions based upon the law and the evidence.
Can children have their own lawyer?
An attorney and/or a guardian ad litem (GAL) may be appointed by the court to represent the children. A concerned parent may request appointment if the children's interests are likely to get buried in the parents' issues. Where the parents are acrimonious, the judge may simply decide to make the appointment.
Who pays for the child's attorney?
The parents will be required to pay the fees of the child's court-appointed representative unless they are without means to do so, in which case a public attorney may be appointed. The judge will allocate the fees between the parents, based upon their relative ability to pay. A parent may not hire a lawyer to represent the children. However, the attorneys for the parents may agree to a representative for the children, and the judge will usually go along with the attorneys' joint recommendation. The attorney for the child or GAL has considerable power and influence in the outcome of the case for the children.
Is there a right to a jury in divorce cases?
No -- there is no jury in divorce or custody cases in Illinois.
Is there a trial in every case?
No. Most family law cases are settled, sometimes after several years of interim wrangling and court proceedings, and after expenditure of many thousands of dollars which could have been divided by the parties for the good of the family. The few cases that are not settled go to trial before a judge, and all rules of procedure and evidence applicable in any civil lawsuit will be applied.
If a party thinks the judge is wrong, does he or she have any recourse?
Yes. A party who is unhappy with the outcome of a divorce trial has a right to appeal. However, appeals are very costly. ($10,000 for each party is not an unusual figure.) Illinois law gives the trial judge a lot of discretion, and appeals are not always successful.
If you have questions about a divorce in Illinois, you should contact an experienced family law attorney in your area.