When you imagine getting divorced, you likely picture two spouses arguing in court under the watchful eye of a judge. Perhaps they cannot come to a decision about child custody, or maybe they are fighting over who will keep the family home. Movies and reality TV shows have sensationalized what divorce really looks like and what the legal process entails. While some divorces can lead to a screaming match in a courtroom, most divorce agreements are created by both spouses behind closed doors.
Most couples do not realize what the Illinois divorce process truly involves until they are thrown into the middle of it. Divorce is never easy, physically or emotionally, and the division of your family is bound to take a toll. While you may never be able to fully prepare yourself for the emotional challenges that will undoubtedly come with your ending marriage, having an understanding of what the legal process includes can make you feel more in control of a major life event that you likely never expected.
Filing for the Dissolution of Marriage
As is the case with any legal proceeding, you must first file a petition for divorce, also known as the dissolution of marriage, before moving forward with the process in Illinois. This will be filed in the circuit court of the county where either spouse resides. You are not required to get divorced in the same state where you said “I do,” as it is unlikely that you live in the same area where you got married and it is unrealistic for you to travel back and forth throughout the legal process. In order to file in Illinois, you or your spouse must have resided in Illinois for at least 90 days before you are legally able to file for dissolution.
In the past, married couples were required to provide a reason—also known as grounds—for their divorces, such as infidelity or abuse. As society has modernized, it has become clear that couples may file for divorce simply because they no longer wish to be married. There may not be any clear-cut reason aside from falling out of low and a desire to move on with their lives. Illinois has recognized this possibility and since repealed the state’s requirement to provide a reason for the ending marriage. As of 2016, married couples can only file for divorce based on irreconcilable differences, also known as a no-fault divorce. These grounds for divorce recognize an irretrievable breakdown within the marriage and a desire to end it in divorce. In addition to this legal update, couples are no longer required to live separately for a set period of time before finalizing their divorce. Married couples were previously required to live apart for two years before they could legally divorce, but now couples can divorce regardless of where they live.
Creating Temporary Orders
The divorce process can take much longer than you may expect. Even if you and your spouse agree to everything within your divorce agreement, the legal process can take months to complete. You likely have a number of questions regarding your everyday life swirling through your head. Who will continue to live in your family home? How will you financially support yourself in the months to come? Where will your kids stay and how often will you see them? What many divorcing couples may not know is that you and your spouse will create temporary orders to stand in place while you are in the middle of your divorce. These orders will not take nearly as long to complete as your official divorce agreement, though you will need to spend some time creating temporary orders that will keep you both comfortable in the months to come. Perhaps you and your spouse discussed this before turning to your respective attorneys, but regardless, it is a good idea to create these temporary orders with the help of an experienced lawyer to ensure that they are legally enforceable if there is conflict and things begin to go south throughout your legal proceedings.
If you and your spouse are parents, the primary focus of your temporary orders will likely be how you will share your parental responsibilities. This may include the allocation of parental responsibilities as well as parenting time. You may decide that you or your spouse need temporary relief from the court. This temporary relief can include financial assistance for child support, spousal support, and attorneys’ fees. The details of your temporary orders can be helpful when it comes to creating a parenting plan. The months in which you follow your temporary parenting plan can be telling of what works and what does not work for your family. For instance, one parent may be adamant about being the primary caregiver for the majority of the time but can come to realize that being a single parent is much more challenging than he or she originally anticipated. You may find that having a 50/50 split when it comes to parenting is a better fit for your family. Remember, your temporary orders are just that—temporary—so it is important to pay attention to how your family handles these arrangements while making decisions about your ongoing divorce agreement.
Depending on how well you and your spouse communicate, in addition to your willingness to cooperate, the discovery process can be straightforward or entail a significant amount of digging. The discovery process requires full disclosure of all relevant information, including you and your spouse’s financials, so that you each receive your allotted amount of the marital assets. If you and your spouse have a fairly amicable relationship, then it is likely that each of you will provide an accurate review of your savings and debts. If, however, one of you is not being completely transparent, you may be required to answer a series of questions, also known as interrogatories, and provide documentation that supports your answers to the other side.
Unfortunately, some spouses may attempt to hide a portion of their assets and keep them outside of the divorce proceedings. This is considered illegal and can lead to repercussions in your final divorce agreement. The discovery process is completed for the benefit of those who may have a spouse attempting to conceal a portion of their marital assets. You may be unaware that your spouse is hiding assets, and you likely do not know where to look. Throughout the discovery process, your attorney will look for the following actions: denial that the asset exists, the transfer of the asset to a third party, claims that the asset was lost, and the creation of false debt. The best place to look for hidden assets is previous tax returns. The following areas within your tax returns may reveal your spouse’s ulterior motives:
Itemized deductions: Take a look at the itemized deductions listed. If, for example, you notice a deduction of property taxes, this could reveal the existence of a hidden property.
Interest and dividends: This section of your tax returns lists all assets that generate interest and dividends. You should compare your own record of familial assets to those listed on your tax return to identify any new or undisclosed assets.
Capital gains or losses: This portion of your tax return records any losses from investments such as stocks, bonds, and real estate. Any reported capital gains or losses can help you identify new assets or the disappearance of disclosed assets.
Agreement or Trial
Once you have completed the discovery process, you will either move toward creating your divorce agreement together or resorting to a trial to nail down the details of your agreement. Those who create their agreement without court intervention will use a process known as collaborative divorce. This type of divorce occurs when you and your spouse create the terms of your agreement with the help of your respective attorneys through negotiation rather than litigation. This can be much more cost-effective for couples who are capable of communicating and collaborating as they avoid court costs and the extensive number of payable hours that litigation can incur. Those who have a more contentious relationship should turn to litigation. Whether you formulate a divorce agreement inside or outside of a courtroom, you will need to address the following topics:
Financial support: In most marriages, one spouse will out-earn the other. While this may not be an issue while you are married, it can lead to a difficult transition period for the lower-earning spouse after your divorce. In cases like these, the higher-earning spouse will pay a specified amount of spousal maintenance for a designated period of time, typically until the receiving spouse gets a higher paying job or remarries. In addition, divorcing parents will also outline child support obligations. The non-custodial parent will be expected to provide the custodial parent with financial support so that despite one parent caring for the child on a more frequent basis, the other parent is still contributing financially.
Asset division: Once all of your assets and debts are disclosed in the discovery process, you will then decide how things will be divided between you and your spouse. This can include physical belongings, such as your home and vehicles, as well as your debts and savings. Illinois divides marital assets equitably rather than equally. In other words, your belongings will be split fairly but not necessarily 50/50.
Child-related issues: Divorcing parents will have additional considerations to be made, including the creation of a parenting time schedule and the allocation of parental responsibilities. Illinois values the importance of keeping both parents in the child’s life, and will typically grant both parents custody rights. As is the case with the rest of your divorce agreement, if you and your co-parent find that your parenting plan is not working well for your family, you are able to request modifications by showing valid reasons for the change.
Contact an Elmhurst Divorce Attorney for Help
Creating a divorce agreement is a lengthy, complicated, detail-oriented process that requires the assistance of a legal professional. Whether you and your spouse are leaning toward a collaborative divorce or litigation to outline and finalize the details of your agreement, you need a reputable divorce attorney to advocate on your behalf and protect your rights. The legal team at Weiss-Kunz & Oliver, LLC can assist you every step of the way. Our firm brings top-level skills to our clients while providing them with small firm attention and case personalization. If you are considering filing for divorce in Illinois, contact our diligent DuPage County divorce lawyers at 312-605-4041 today to schedule a confidential consultation.