Here's What Gets Resolved and What Happens When Couples Divorce in Illinois

by
Richard Fonfrias, J.D.
Chicago's Financial Rescue & Bankruptcy Lawyer
Fonfrias Law Group, LLC




The typical divorce includes several outcomes: Ending the marriage. Dividing marital property. Deciding whether either spouse will pay alimony. And child-related issues

Dissolution of Marriage: This is the legal term meaning divorce. The court will dissolve your marriage and all benefits that arise from it.

Child-Related Issues: The court will decide the following: Where the children will live, how often the noncustodial parent may visit, which parent will make child-related decisions, and how much money the noncustodial parent must pay in child support.

Parenting Education: Divorcing spouses must attend a parenting class before the Court will assign parental responsibilities, such as major decision-making duties and parenting time. In this class, parents learn how to act during the divorce so they don't hurt their children. The parents must attend the 4-hour session within 60 days after they first meet with the judge. In Cook County, you can take the class online.

Resolution Date: The assignment of important parental responsibilities must be completed within 18 months of the date of service of the divorce petition, unless the judge decides a delay in warranted.

Property Distribution: The judge will fairly divide the marital assets. Other issues surrounding the divorce have no impact on the judge's decision.

Alimony: The judge will decide whether one spouse should pay alimony to the other, and how much.

Reason for Divorce: The only reason for divorce is "irreconcilable differences", also called "no-fault divorce". In simple terms, this means that you and your spouse can no longer get along with each other.

  • 6 Months Apart: The court presumes that "irreconcilable differences" exist if you and your spouse have been separated for at least 6 months. Then you no longer have to prove that you can't get along.
  • Less Than 6 Months Apart: If you and your spouse have been separated for less than 6 months, you can still divorce; however, the judge may require that you show him that you cannot get along. You do not have to explain anything that your spouse did to prove you have irreconcilable differences.

Marriage License: To have a valid marriage, you must have three events: Getting marriage license, having a formal ceremony, and registering with the County Clerk. If your marriage never included any of these events, you won't likely need a divorce. If your marriage included some but not all of these events, you might need to file for divorce. Check with a divorce attorney for more information.

Divorce Timing
  • Your Residency: Either you or your spouse must have resided in Illinois for at least 90 days before the court says irreconcilable differences exist. You can file for divorce in Illinois only if you reside in Illinois.
  • Your Children's Residency: The court may not be able to divide property or make decisions regarding your children. Before the court can make child-related decisions, the children must have resided in Illinois for at least 6 months before the date of filing for divorce. The law allows a few exceptions, which you should discuss with a qualified lawyer.

County of Residence: Your divorce may be filed in the county of residence of either spouse. If you want to change the county of your case, you should raise the question in your response to the divorce petition.

Divorce Cost: You must pay two fees to file for divorce. First, you pay the filing fee to the County Clerk when you file for divorce. Second, you pay to make sure that your spouse has been notified of the divorce. This means you must pay a sheriff's deputy to personally hand-deliver a copy of the divorce papers to your spouse. Or, if the deputy cannot find your spouse, then you must pay to publish a divorce notice in the newspaper.
  • Filing Fees: These vary from one county to another. Contact the County Clerk for the current costs.
  • Fee Waiver: If you do not have money to pay these fees, the judge may grant you a fee waiver once you prove that you have little income.
  • Future Fees: For example, if the judge requires mediation, then you'll have that fee. If you have children under age 18, then you must pay for and attend parenting class. You will have fees if you file additional motions with the court.
Contested vs Uncontested Divorce
  • Contested Divorce: A contested divorce is when you and your spouse do not agree. The subjects can include the following: When your spouse does not want a divorce. When your spouse disagrees with decisions related to your children. When your spouse disagrees about paying child support. When your spouse disagrees about how your property should be divided. When your spouse disagrees about who should pay specific debts. When your spouse disagrees about whether alimony should be paid.
  • Uncontested Divorce: An uncontested divorce is when you and your spouse agree on everything. The subjects can include the following: When both of you want a divorce. When both of you agree on issues involving your children. When both of you agree on how to divide property. When both of you agree on who should pay specific bills. When both of you agree whether alimony should be paid.
  • The fact that your divorce is uncontested does not mean that the Court will approve all of its terms. The conditions cannot be unreasonable and the children must be supported as specified by law.

Joint Simplified Divorce
  • Joint Simplified Dissolution of Marriage or Joint Simplified Divorce: This is a court procedure that makes divorcing easier. If you meet the legal requirements, you and your spouse can qualify for this type of divorce.
  • For a Joint Simplified Divorce, you and your spouse must agree in everything. You and your spouse must be married for fewer than 8 years. You and your spouse must not have any children together. Neither you nor your spouse can own any real property. You and your spouse must earn a combined total of less than $60,000 per year. And neither you nor your spouse can earn more than $30,000 per year. Your marital property's value cannot exceed $50,000.
Signing Divorce Papers: If your spouse refuses to sign the divorce papers, you can still get a divorce. In fact, your spouse can completely ignore the divorce process and you can still divorce because the judge makes the decision to grant your divorce, not your spouse.

Location of Spouse: Your spouse must be served with legal papers to give him or her legal notice about the divorce. If you cannot find your spouse, then you can publish a notice in the local newspaper. Contact your County Clerk's office to find out the proper newspaper in which to publish your notice.

Service by Publication: You can use service by publication only under these conditions: If you could not locate your spouse after a good-faith effort to find him. If you have asked your spouse's friends and family where to find him. If you serve your spouse by publishing a notice, you cannot get alimony, child support, divisions of assets other than personal property, or property outside the state of Illinois. The court "reserves" these issues, which means the Judge will not decide these issues when he grants the divorce. If your spouse is later found, you can go to court and have those issued decided.

Knowledge of Divorce: Your spouse must have notice that you filed for divorce so he or she can respond. After receiving notice, your spouse can ignore the divorce or take part in concluding it. If your spouse ignores the divorce, you can move forward without his participation. But if you don't give your spouse legally sufficient notice of your divorce, then the judge will not grant your divorce.

Length of Time: How long it will take to get your divorce depends on many things. These include how long it takes to tell your spouse about the divorce. Whether your spouse participates in the divorce. Whether he contests matters of parental responsibilities and alimony. If you and your spouse have an uncontested divorce, where you agree upon everything, your divorce may be final in a few months. For a contested divorce, you're usually looking at more then 18 months for your divorce to be granted.

Home Occupancy: After you file for divorce, you may petition the court for a temporary order giving you occupancy of the home. You'll need to file a written request and the court must hold a hearing based on your request.

Temporary Relief: While your divorce is pending, you can ask the court to issue temporary orders. At the end of your divorce, the temporary order will be replaced by the final and permanent order. The order for temporary relief may include the following: The assignment of parental responsibilities, including decision-making authority, parenting time, and child support. Also, the order could address alimony, exclusive possession of the home, forbidding the other spouse from selling property, forbidding the other spouse from taking the child, attorneys' fees, and any other relief the court deems appropriate.

Judge's Duties: The judge can grant the following orders: Assign parental responsibilities. Set the amount of child support. Divide marital property. Divide marital debts. And set the amount of alimony.

Last Name: The law does not require that your spouse change his or her last name after the divorce is final.

Maiden Name: If you used your spouse's last name after you married, the judge can allow you to go back to any other former name. But the judge cannot permit you to take a new name that you did not have before marriage. If you want to change your name, then you must file a separate legal action.

Lawyer: You do not have to hire a lawyer to get a divorce in Illinois. Even so, it's a good idea to speak with a lawyer about your legal rights, even if you don't hire a lawyer. If you suspect that your spouse will disagree with you on important matters, it pays for a lawyer to help you. Also, you should speak with a lawyer if you or your spouse owns real estate, has a retirement account, has children, has a disability requiring special needs, needs alimony from the other spouse.

Marital Property: This is money or assets that you and your spouse acquired during your marriage. An item that you bought one hour before your marriage is not marital property. Something that you bought one hour after your marriage is marital property.
  • Here are exceptions to the rule about assets and money acquired during your marriage. Marital property does not include the following: Assets that you received as a gift or inheritance. Assets that you received in exchange for assets received before the marriage. Assets you received in exchange for assets received as a gift or inheritance. Assets you or your spouse owned after a Judgment of Legal Separation. Assets excluded by a valid agreement between the spouses. Any judgment or asset acquired by a court judgment awarded to one spouse from the other spouse. And assets owned before marriage.
  • The judge will fairly divide marital property between you and your spouse. Assets, however, might not be divided in equal shares. The judge decides what is fair based on your particular circumstances.
  • If you and your spouse own a home together, and if the home title remains in joint tenancy after the divorce, then one ex-spouse will acquire the other ex-spouse's interest in the home upon the ex-spouse's death. Responsibility for Debts After Separation: As you know, spouses are responsible for the family's expenses during the marriage; however, a judge will usually not make you responsible for new debts incurred by your spouse after you separated. Also, you are not liable for debts your spouse incurs after you divorce.

    Civil Union: A divorce from a civil union is the same as a divorce from a marriage.

    Same-sex Marriage: A same-sex divorce is the same as any other divorce.

    If you have questions about uncontested divorce in Illinois, foreclosure, bankruptcy, protection from creditors, garnishment, tax and credit card debt, or any other financial problems, I will be happy to help. Please call me today at 312-969-0730 or send your e-mail today to rich@chicagomoneylawyer.com." -- Rich