Getting a divorce in Illinois is not simply filling out forms. Otherwise, everyone would get divorced by merely checking boxes and submitting a form. Marriage and the dissolution therefrom is a fundamental right. Marriage and divorce are taken seriously by the law and afforded due process in Illinois.
“[M]arriage is a fundamental right.” Boynton v. Kusper, 494 NE 2d 135 – Ill: Supreme Court 1986
For some people, however, a divorce should probably should be as easy as filling out a form.
Short marriages without kids and without any real assets should be allowed to have simple divorces without the need for discovery, status dates, temporary orders and final prove ups.
The Illinois legislature decided to make divorce easier for folks without kids, money or the need for money when it implemented 750 ILCS 5/IV-A Joint Simplified Dissolution Procedure.
A joint simplified divorce in Illinois allows that “[t]he parties shall use the forms, including a form for the affidavit required under Section 454, provided by the circuit court clerk, and the clerk shall submit the petition to the court.” 750 ILCS 5/543
Instead of a petition for dissolution of marriage, the parties to a divorce fill out a prescribed form. Well, there already is a Supreme court approved form for a petition for dissolution of marriage. The forms do not look that different to me.
After the petition is filed, “[t]he court shall expeditiously consider the cause. Both parties shall appear in person before the court and, if the court so directs, testify. The court, after examination of the petition and the parties and finding the agreement of the parties not unconscionable, shall enter a judgment granting the dissolution if the requirements of this [statute] have been met”750 ILCS 5/543
That sounds exactly like a prove up in a regular Illinois divorce. Except that there are additional requirements to use the joint simplified petition for dissolution form.
“The parties to a dissolution proceeding may file a joint petition for simplified dissolution if they certify that all of the following conditions exist when the proceeding is commenced: Neither party is dependent on the other party for support or each party is willing to waive the right to support; and the parties understand that consultation with attorneys may help them determine eligibility for spousal support.” 750 ILCS 5/452(a)
The parties to the divorce might have a right to support from each other but they are waiving that right (but they should probably consult an attorney). When the statute is telling you, “Hey, this statute isn’t so great. Maybe you should talk to a lawyer” that is probably a red flag.
“Either party has met the residency or military presence requirement of Section 401 of this Act.” 750 ILCS 5/452(b)
Exactly the same as a regular petition for dissolution of marriage.
“The requirements of Section 401 regarding proof of irreconcilable differences have been met.” 750 ILCS 5/452(c)
Exactly the same as a regular petition for dissolution of marriage.
“No children were born of the relationship of the parties or adopted by the parties during the marriage, and the wife, to her knowledge, is not pregnant by the husband.” 750 ILCS 5/452(d)
You cannot have children together if you want to file a petition for joint simplified dissolution of marriage.
“The duration of the marriage does not exceed 8 years.” 750 ILCS 5/452(e)
No marriages over 8 years in length are allowed if you want to file a petition for joint simplified dissolution of marriage.
“Neither party has any interest in real property or retirement benefits unless the retirement benefits are exclusively held in individual retirement accounts and the combined value of the accounts is less than $10,000.” 750 ILCS 5/452(f)
No real estate and no retirement accounts valued over $ 10,000 if you want to file a petition for joint simplified dissolution of marriage.
“The parties waive any rights to maintenance.”750 ILCS 5/452(g)
Didn’t the statute just tell us this in 750 ILCS 5/452(a) when the statute told us to check with a lawyer?
“The total fair market value of all marital property, after deducting all encumbrances, is less than $50,000, the combined gross annualized income from all sources is less than $60,000, and neither party has a gross annualized income from all sources in excess of $30,000.” 750 ILCS 5/452(h)
The minimum wage in Chicago is $ 15/hour. That’s $ 30,000 annually. Virtually no one in Chicago is eligible for a petition for joint simplified dissolution of marriage. The people who would be eligible for a joint simplified petition for dissolution of marriage probably need support…which would be waived in a joint simplified dissolution of marriage.
“The parties have disclosed to each other all assets and liabilities and their tax returns for all years of the marriage.” 750 ILCS 5/452(i)
Up to 8 years of tax returns have to be exchanged! Regular Illinois divorces do not even require that much disclosure.
“The parties have executed a written agreement dividing all assets in excess of $100 in value and allocating responsibility for debts and liabilities between the parties.” 750 ILCS 5/452(j)
Every item over $ 100 has to be accounted for in an Illinois Joint Simplified Divorce? This seems excessively complicated. In a regular divorce, the assets get physically divided and we just memorialize the division with the language “The parties have previously divided all furniture, furnishing, personal jewelry, clothing, books, and memorabilia equally and to their mutual satisfaction. Said property, as divided, shall be deemed the sole property of the party who has possession, free and clear of any claim of the other.”
“The parties have executed a written agreement allocating ownership of and responsibility for any companion animals owned by the parties. As used in this Section, “companion animal” does not include a service animal as defined in Section 2.01c of the Humane Care for Animals Act.” 750 ILCS 5/452(k)
If you have a pet, you still need a companion animal schedule in a joint simplified divorce.
Finally, on the date of the divorce, the parties have to furnish an additional affidavit saying “we really have an agreement.”
“At the time of the hearing, the parties shall submit to the court an affidavit executed by both parties stating that all property has been divided in accordance with the agreement of the parties and that they have executed all documents required to effectuate the agreement.” 750 ILCS 5/454
Um, shouldn’t the divorce agreement speak for itself?
If you have not guessed by now, I don’t think much of joint simplified divorce in Illinois. In fact, I’ve never heard of anyone actually getting one (It might be because they wouldn’t need a divorce lawyer).
An Illinois joint simplified divorce seems pointless at best and cumbersome at worst. A joint simplified divorce also presumes that the divorce will remain uncontested and agreed throughout the entire process. You are getting divorced! Agreeing on things is not your strong suit as a couple.
You can still get a simple uncontested divorce in Illinois without using the joint simplified divorce forms. It just takes a little knowledge and experience to be sure that the documents fit your and your soon-to-be-ex-spouse’s needs.
If you would like to talk about getting a divorce that may not be so simple or so joint, contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Illinois divorce attorney.