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The Illinois Divorce Process

Illinois Divorce Word Cloud on black backgroundWhat is a “divorce process?” Simply put, it’s the process you use to get a divorce. There is no one Illinois divorce process. There are many.

The main divorce processes used in Illinois are:

  •             Illinois Divorce Litigation
  •             Illinois Divorce Mediation
  •             Collaborative Divorce in Illinois
  •             Illinois Divorce Arbitration
  •             Online Divorce in Illinois
  •             Illinois Joint and Simplified Divorce

Courtroom scene where female witness testifies while a lawyer questions her and a judge looks on.Illinois Divorce Litigation

Litigation is the traditional way to get a divorce in Illinois. Essentially “litigation” means “going to court.” While every divorce case must get approved by a judge in the end, if you use the court system for your entire divorce, the divorce process you are using is litigation.

Because litigation was the first Illinois divorce process, every other divorce process except litigation is known as “alternative dispute resolution.” Mediation, Collaborative Divorce and arbitration are all alternatives to fighting in court.

The Illinois Divorce Litigation Process

Divorce litigation starts when either you or your spouse files a divorce petition in court. (This is called a “Petition for Dissolution of Marriage.”) Once you or your spouse files that petition, you begin the Illinois divorce litigation process.

While you are going through litigation, you and your spouse will have to file an Illinois Financial Affidavit. You will also have to engage in a formal information-gathering process called “discovery.”

“Discovery” includes document production requests and interrogatories (written questions) that you and your spouse will have to answer. It can also include sending subpoenas to banks, financial institutions and other third parties to get relevant information from them which can then be used in your divorce.

Finally, discovery includes depositions (formal, oral question and answer sessions). During your divorce, your lawyer can depose your spouse, as well as other people who may have relevant information in your divorce.

The Pretrial Process

During litigation, either you or your spouse may file for temporary relief from the court. For example, one of you may want to get child support or spousal support while your divorce case is pending. To do that, you would need to apply with the court to get support.

If you choose litigation as your way to get a divorce in Illinois, you (and your attorney!) will likely go to court many times. There are a LOT of things you can fight about while you’re going through your divorce. Every time you fight, you will probably end up in court.

If you and your spouse can’t agree on your divorce issues, you will ultimately end up going all the way to trial. At trial, a judge will hear all the relevant evidence in your divorce. Then s/he will decide all your divorce issues for you.

Very few divorces end up going all the way through trial. Most divorce cases settle. That means that, eventually, after you and your spouse have gone through discovery, and have fought in court long enough, you will end up settling your case out of court.

You can settle your divorce directly with your spouse. Or, your divorce lawyers can help you settle your divorce.

The Pros and Cons of Litigating Your Divorce in Illinois

The benefits of litigating your divorce in Illinois is that going to court WILL get you divorced. If your spouse is dragging his/her feet and doesn’t want to get a divorce, litigation will make your divorce happen (eventually).

Litigation can also be a good way to get a divorce in Illinois if your spouse refuses to co-operate or refuses to follow the rules. A divorce judge can force your spouse to do what s/he is supposed to do. If your spouse doesn’t do what the judge says, the judge can hold your spouse in contempt of court.

On the down side, Illinois divorce litigation is the most expensive, emotional, and time-consuming way to get a divorce. It also destroys relationships.

While you may not think you want to have a relationship with your spouse after your divorce, if you have children together, thinking that way is short-sighted. Like it or not, you and your spouse will be your children’s parents forever. Making your spouse your mortal enemy during your divorce can cause you (and your kids!) problems for decades after your divorce is over.

Unhappy man and woman sit at a business table with a divorce mediator.Illinois Divorce Mediation

Mediation is a way of resolving your divorce outside of the court system. In mediation, you and your spouse will meet with an Illinois mediator in his/her office and discuss your divorce issues. The mediator – who is a specially trained, neutral professional – will help you and your spouse talk with each other and settle any disputes you may have.

Illinois divorce mediators are generally either lawyers, therapists, or financial advisers. No matter which kind of mediator you hire, it’s important to realize that your mediator must remain neutral. That means that even though your Illinois divorce mediator may also be a lawyer, s/he can not give you legal advice. (And a therapist mediator can’t also be your therapist etc.)

The Illinois Divorce Mediation Process

Mediation is a well-established Illinois divorce process. You can mediate all your divorce issues, or you can just mediate certain issues in your divorce. (For example, you may choose to mediate your parenting issues but litigate your money issues.)

Even though mediation is less formal than litigation, you will still have to provide the mediator with financial information in order to mediate your divorce.  Most Illinois divorce mediators will ask that you complete the same financial affidavit that you would have had to complete if you were going to court. They may also ask you to provide them with other financial documents, like tax returns and retirement account statements.

How Illinois Divorce Mediation Works

There are several different ways your divorce mediation can be conducted. The type of mediation you engage in depends upon the mediator you hire, your personal preferences, and the facts and circumstances of your case.

Most Illinois divorce mediation is conducted with just the mediator, you and your spouse present. While it is always advisable to get advice from an Illinois divorce lawyer BEFORE you start mediation, your lawyer is generally not present in the room with you when you have your mediation sessions.

If you’re not comfortable negotiating directly with your spouse, and you want your lawyer to be with you during the mediation sessions, you can also get attorney-assisted mediation. In that type of mediation, your lawyers will go with you to the mediation sessions and help you negotiate with your spouse. (HINT: If your spouse has a lawyer during mediation, you need one too!)

Most mediators conduct their mediation sessions in 2 – 3 hour blocks of time. However, there are some mediators who will mediate your divorce for as long as it takes for you to reach an agreement. Those mediation sessions can last all day.

The Pros and Cons of Illinois Divorce Mediation

Mediation gives you much more control over your divorce process, and your divorce settlement, than litigation.  Because it takes place outside of court, Illinois divorce mediation is also more private than litigation. It is also less expensive.

Mediation is usually quicker than going to court. You and your spouse can control when your mediation sessions will occur. You’re not bound by the court’s schedule.

Another huge benefit of mediation is that it helps preserve the relationship between you and your spouse. That makes parenting your children after your divorce is over way easier.

Finally, because you and your spouse created your agreement yourselves, you are much more likely to abide by that agreement after your divorce is over. That will save you from  fighting in court after your divorce is over! (You may think that won’t happen to you. But neither did thousands of other couples who ended up fighting in “post-decree” court!)

The down side of mediation is that it is mostly voluntary. While Illinois judges can order you and your spouse to go to mediation, they can’t force you to make an agreement there.  (Judges will typically order you to mediate parenting issues – things like who will make decisions for your kids and when you and your spouse will see your kids –  BEFORE you can litigate those issues in court.)

Another drawback of mediation is that it relies on you and your spouse to voluntarily provide all necessary financial information. If one of you won’t produce all the required financial information, or purposely tries to hide financial transactions, mediation won’t work.

Mediation also requires that you and your spouse negotiate with each other in good faith.

Couple and their lawyers sitting around a table using Collaborative Law to resolve their divorce.Collaborative Divorce in Illinois

Getting a “Collaborative Divorce” means much more than just “divorcing amicably.” Collaborative Divorce is a very specific kind of Illinois divorce process. It involves specially trained divorce professionals who work with you to resolve your divorce out of court.

The Illinois Collaborative Divorce Process

Collaborative Divorce in Illinois uses a team approach. In Collaborative Divorce, not only will you and your spouse have divorce lawyers, but you will also have at least one divorce coach (maybe two!), a neutral divorce financial adviser, and perhaps a neutral child specialist to help you get through your divorce. The number of divorce professionals you use in your divorce is up to you.

To participate in a Collaborative Divorce in Illinois, both you, your spouse, and all the divorce professionals you hire, must sign a written agreement promising that you will stay out of court. (This is known as a “Participation Agreement.”)

If, at any time before your divorce is finalized, you or your spouse files anything in court, then the Collaborative Process ends.  All your divorce professionals will withdraw from your divorce.  You and your spouse must then hire new divorce professionals and start your divorce process all over again in court.

Signing this Agreement is what makes Collaborative Divorce different. It’s also what helps keep your divorce professionals on the same page with you. After they’ve signed this Agreement the professionals know that if you go to court, they lose you as a client. So everyone is incentivized to keep negotiating out of court.

(PRACTICAL TIP: If you, your spouse, and both your lawyers don’t sign a Participation Agreement, you’re NOT using Collaborative Divorce! It really is that simple.)

How Illinois Collaborative Divorce Works

Collaborative Divorce meetings are conducted in one of the divorce professionals’ conference room. You, your spouse and the divorce professionals control when and where the meetings are scheduled.

Some meetings will be conducted with you, your spouse, and all the divorce professionals. Other meetings may be held with just you, your spouse and the financial neutral or coach. You will also meet with your attorney individually.

The types of meetings you need, and who is present at those meetings, is determined by the facts and circumstances of your case.

During your divorce, the divorce professionals will collect your financial information. (They may or may not ask that you use the Illinois Financial Affidavit. What’s most important is that you provide the financial information the divorce professionals request.)

The Pros and Cons of Collaborative Divorce in Illinois

Because of the variety of professionals involved, Collaborative Divorce is the most supported way to go through a divorce. It also gives you a far greater level of control over your divorce. You can control the timing and pace of your meetings. You can also control who sees your financial information.

Collaborative Divorce is more private than litigation. Like mediation, because Collaborative Divorce occurs outside of the court system, your private information won’t become part of the public record.

Another huge benefit of Collaborative Divorce is that it gives you the biggest chance to settle your divorce issues in a way that meets the specific needs of your family. Rather than keeping you locked into trying to “win at all costs,” Collaborative Divorce gives you and your spouse a way to end your marriage with dignity and grace and to create a “win/win” result for you and your kids.

On the down side, Collaborative Divorce is not the cheapest way to go through a divorce. (The absolute cheapest way to go through a divorce is to go the DIY route … but that doesn’t always go well, especially if you have anything important you don’t want to lose!)

Another down side of Collaborative Divorce is that it’s voluntary. The court won’t ORDER you to get a Collaborative Divorce. So, unless you and your spouse agree that you both want to use the Collaborative Divorce Process in Illinois, you will have to resolve your divorce some other way.

Another drawback of Collaborative Divorce is that, like mediation, it relies on you and your spouse to voluntarily provide all necessary financial information. It also requires that you and your spouse negotiate with each other in good faith.

Logo for the Collaborative Law Institute of IllinoisThe Collaborative Law Institute of Illinois

Getting the right professionals is the key to having a successful Collaborative Divorce. To find highly trained Illinois Collaborative Divorce professionals who can help you with your Collaborative divorce, check out the Collaborative Law  Institute of Illinois, or just  CLICK HERE.

Red book with the word "Arbitration" on it with a blank business card and a pen.Illinois Divorce Arbitration

Arbitration is another Illinois divorce process. However, in most places in Illinois, divorce arbitration is not particularly common.

The Illinois Divorce Arbitration Process

Arbitration is like an informal trial. But in arbitration, instead of presenting your case to a judge, you present it to an arbitrator.

You, your spouse, and your lawyers must agree on who will act as your arbitrator before you can arbitrate your divorce. Everyone must also agree on the rules that will be used during arbitration. There are no set “arbitration rules” that apply in every case.

You can arbitrate your entire divorce. Or, if you prefer, you can arbitrate specific key issues in your divorce and then negotiate a settlement for everything else.

How Illinois Divorce Arbitration Works

During arbitration, your attorneys will present evidence and witnesses. (Just like in court, both you and your spouse will likely have to testify before the arbitrator.) Your attorneys will argue your case before the arbitrator, just as they would do at trial.

After the arbitration hearing is over, the arbitrator will decide your divorce and will write an arbitration award. Your lawyer will then present that award to the judge, who will confirm it in court.

Even though arbitration is like a “mini trial,” there are significant differences between arbitration and trial.

First, the arbitration hearing is usually less formal than a court trial.  The rules are generally more relaxed than the rules in court. The arbitration process is usually also streamlined so that it takes less time to present your case.

The arbitration hearing usually occurs in the arbitrator’s office. Unless someone appeals, the only thing that gets recorded in court is the arbitrator’s award.

(That is, unless someone appeals from the award.  Then a transcript of the arbitration hearing may get filed in court.)  Finally, in arbitration you (or your attorney) chooses the arbitrator.  When you go to court, you normally don’t get to pick your judge.

The Pros and Cons of Divorce Arbitration in Illinois

In arbitration you get to choose your arbitrator.  That gives you a significant advantage because if you have complicated finances or other special issues you can hire an arbitrator who understands those issues. When you go to court, the judge you get is randomly assigned to your case. If s/he doesn’t have the background you need, you’re stuck.

Divorce arbitrations can also be completed much more quickly than trials. Arbitrators are often not as busy as judges. So they can get your divorce done faster (assuming that you and your spouse don’t drag your heels!)

Divorce arbitration also gives you way more privacy and control than you would have if you want to court. Your finances don’t become public records. And, unlike in court, you get to control the rules that will apply in your case.

But, just like every other Illinois divorce process, divorce arbitration has its drawbacks.

First, if you want to arbitrate your divorce, you and your spouse will both need lawyers. Arbitration hearings are complex. Most Illinois arbitrators will not let people who don’t have lawyers try to muddle through the arbitration process alone.

Second, it’s not cheap. You have to pay your arbitrator and your lawyers. You also have to pay to have your lawyers argue about who your arbitrator should be, and what arbitration rules should apply.

Finally, perhaps the biggest down side of divorce arbitration is that it is still very rarely used in Illinois. It is very difficult to find a divorce lawyer who will want to arbitrate your divorce.

Close up of a laptop keyboard and screenOnline Divorce in Illinois

Lots of people these days think you can get something called an “on-line divorce.”

You can’t.

The only person in Illinois who can divorce you is a judge.  There is no website you can go to where you simply answer some questions, pay a fee, and end up divorced. (Sorry!)

What most people call “on-line divorce” is really “Do It Yourself” or DIY Divorce.

Online Divorce Documents in Illinois

What you can get done online is your divorce documents. That means, you can go to a website that specializes in producing online legal documents. You pay a fee and answer a series of questions. Then you get your own downloadable divorce documents that you can print out and file in court yourself.

Some online divorce services may provide you with legal advice. Others don’t.  Either way, you still have to file those documents in court yourself.

Many court systems now allow you to file your legal documents online. While that sounds like it should be easy, usually, it’s not. Court filing systems can be complicated and confusing (even for lawyers!). If you’re doing your divorce yourself, and you screw up your filing, that’s on you.

Plus, filing for divorce only STARTS your case. To end your case, you have to figure out how to get a court date from the online system. Then you have to comply with the court’s notice requirements. Then you have to show up in court on the appropriate day and present ALL of the right documents to the judge, testify, and get divorced.

If you do any of these steps wrong, you may have to go to court a second (or third) time and try again.

The Pros and Cons of DIY Divorce in Illinois

Doing your own divorce without a lawyer is definitely the least expensive way to get a divorce. Or, rather, it’s the least expensive if you do it right. If you mess it up, and then you have to hire a lawyer to try to fix it later, your “DIY Divorce” can be the most expensive mistake you ever make in your life.

As for online divorce documents, like everything else in life, you get what you pay for.

Your online documents will definitely be better than anything you could have drafted yourself. They will also probably be way worse than what you could have gotten from a lawyer.

Will they be good enough? That depends.

If you have a short marriage, no real estate, no children, no one needs support, and you’re not splitting any retirement plans, doing your documents online may not hurt you.  But if you have children, houses, retirement accounts, significant debts, or if either you or your spouse wants to get maintenance from the other, doing a DIY Divorce in Illinois probably won’t be your best choice.

Red button with the word "Divorce"written on it in white lettersIllinois Joint and Simplified Divorce

In addition to all the different kinds of divorce listed above, Illinois also has a special type of divorce that’s specifically designed for people to do themselves. It’s relatively simple and straightforward. But not everyone can use it.

Illinois Joint and Simplified Divorce Requirements

If you and your spouse want to get a joint and simplified divorce in Illinois you must meet ALL of these requirements:

  • You or your spouse must have lived in Illinois for at least 90 days before you filed for divorce;
  • You and your spouse have to agree that irreconcilable differences have arisen between you and that you want a divorce;
  • Neither you nor your spouse can ask for maintenance (spousal support);
  • You can’t have children;
  • The wife can’t be pregnant by the husband;
  • You’ve been married for less than 8 years;
  • Neither you nor your spouse owns any real estate;
  • You and your spouse have NO joint retirement benefits and the combined amount of any individual retirement benefits you have is less than $10,000;
  • The value of everything you own (after subtracting what you owe on that property) is less than $50,000;
  • Neither you nor your spouse earns more than $30,000 per year, gross;
  • Together, you and your spouse do not earn more than $60,000 per year, gross;
  • You and your spouse have each disclosed all of your assets and debts to each other;
  • Both you and your spouse have copies of all of the tax returns either of you filed during your marriage;
  • You and your spouse have both signed a written settlement agreement dividing all of your property worth more than $100 and all of your debts; and
  • You and your spouse have both signed a written settlement agreement outlining who will own and be responsible for all of your pets.

If you don’t meet ALL of these requirements, you can’t file for an Illinois joint and simplified divorce.

How The Illinois Joint And Simplified Divorce Process Works

If you meet all of the requirements stated above, then you and your spouse can file for an Illinois Joint and Simplified Divorce. You must file your case together.

If you live in Cook County, you can use the Joint Simplified Divorce in Cook County Program to complete your divorce. CLICK HERE to access that program.

If you live in any other county, check with the clerk of the court for your county to find out which documents you need to file and how you can get them prepared.

The Pros and Cons of Getting an Illinois Joint and Simplified Divorce. 

The pros of this particular divorce process is that it’s relatively simple and cheap.

The cons are that the requirements for who can use it are fairly strict. But, if you can use this process, doing so makes a lot of financial sense.

Another con is that, even though this process is way more simple than any other Illinois divorce process, it can still be more complicated than you think! If you mess up the paperwork, you may have to get a second court date so you can come back after you’ve gotten the paperwork right.

 

 

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