Family Law News
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Q. How long do I have to live in Illinois before I can file for divorce?
A: Roughly three (3) months. The Illinois Marriage and Dissolution of Marriage (“IMDMA” for short) requires that at least one of the parties reside in Illinois for a period of 90 days prior to filing or the entry of the final judgment. However, if your case involves minor children, 90 days is not enough for an Illinois court to have jurisdiction to deal with the custody issues.
Q: I just moved here, but my ex still lives in another state. Can I get divorced in Illinois?
A: Assuming the residency requirements are met, yes. It is important to be cognizant of the possibility of your ex filing where he or she lives because that state will typically also have the jurisdiction to enter a divorce judgment. Further, if you have children or property in the other state, an Illinois court lacks jurisdiction to deal with those.
Q: What do I need to file for divorce?
A: Actions for dissolution of marriage are initiated by the filing of a Petition and the issuance of a Summons by the court clerk. You will need your cover sheet, Petition for Dissolution of Marriage, the Summons, and the filing fee (in Cook County, the filing fee is currently $359).
Q: Do I have to have an attorney?
A: No. There is no requirement that you have an attorney, but it is strongly advised. As a pro se litigant, you are required to follow all the same procedures and rules that attorneys are. Attorneys have a greater knowledge of and familiarity with the court system and applicable law and are in a greater position to ensure that all of the issues in your case are dealt with appropriately. Think of an attorney as a tour guide – you know what you want, and the attorney knows the best way to get you there.
Q: Do I have to have grounds to get divorced in Illinois?
A: No, Illinois is a no fault state. While the previous version of the IMDMA provided parties with the option of proceeding under various fault grounds, all grounds were eliminated from the statute effective January 2016, rendering Illinois a pure no fault state.
Q: What’s the difference between legal separation and dissolution?
A: The biggest is that in a legal separation, the parties remain married even after a judgment is entered. Under a legal separation, the court can award maintenance (aka alimony) but lacks the ability to divide property absent a written agreement by the parties. Legal separations can be converted to dissolutions without filing a brand new case. Unlike separation, a judgment of dissolution ends the marriage; further, the court has the ability to award maintenance, divide property, award maintenance, and enter custody orders. Legal separations are rarely done because absent extraordinary circumstances, they have minimal benefits.
Q: What if my spouse and I reconcile and decide not to go through with the divorce?
A: There a number of options. In Cook County, your case can be moved to the reconciliation calendar, which keeps the case open but puts it on hold. Other counties have similar procedures, but even if they don’t, a judge has the discretion to schedule a longer status date than normal to give you and your spouse time to work it out. If the reconciliation is successful, ultimately, the dissolution case will be dismissed without prejudice.
Q: How can I get custody of my kids?
A: First of all, in Illinois ‘custody’ is referred to as allocation of parental responsibilities. The concept commonly identified as legal custody is known in Illinois as the allocation of parental responsibilities for decision making; this includes things such as health care, education, religion, and extracurricular activities. The allocation of parental responsibilities re: parenting time is the concept understood as physical custody. When determining the allocation of parental responsibilities, the court looks to serve the best interests of the child(ren) by considering a number of factors like the child(ren)’s relationship with each parent, the parents’ willingness and ability to co-parent, the needs of the child(ren), and any other factors the court deems relevant.
Absent evidence to the contrary, each parent is deemed fit, and it is widely considered to be in the best interests of the child(ren) that both parents be actively involved in the child(ren)’s life. There is no easy answer to the custody question, as it depends on the circumstances of each case.
Q: My friend is going through a divorce and the judge made her and her ex go to mediation. What is mediation and will I have to go to mediation?
A: Mediation is a widely used method of alternate dispute resolution. Both parties meet with a neutral mediator to facilitate discussions to try to reach a settlement of the issues in the case. For most cases, it is optional; however, in Cook and Lake counties, mediation is required in all cases in which allocation of parental responsibilities is at issue.
Q: Does my ex have to pay my attorneys’ fees?
A: While each party is generally responsible to pay the initial retainer, the IMDMA does give the court discretion to order one party to pay attorneys’ fees incurred or to be incurred by the other. A party can be ordered to contribute to the other’s attorneys’ fees both while the action is pending and as part of a final judgment of dissolution.
Illinois is ‘level the playing field’ state, meaning that the law wants both parties to have the ability to “adequately participate.” Once a petition for attorneys’ fees is filed, the court will evaluate the request based on the parties’ financial circumstances, the reasonableness of the attorneys’ fees, and the amount of fees paid by both parties.
Q: I don’t make enough to live on my own, how am I supposed to cover my expenses while the divorce is still pending?
A: You do not have to wait for a final judgment to get maintenance and/or child support. The court has broad discretion to award spousal and/or child support on a temporary basis and may also make orders regarding joint debts, such as mortgages or car payments, and possession of the marital home. If you anticipate that you will be coming up short, it is a good idea to file a Petition for Temporary Relief as soon as possible.
Q: How many times will I have to go to court before my divorce is final?
A: The short answer is - at least once. The number of court appearances in one case can vary greatly from case to case, and if you have an attorney, there are a number of court appearances that he or she can go to that do not require your attendance. For example, judges rountinely schedule status dates for cases on their call for the purpose of making sure the case is progressing and not stagnating – if you have an attorney, you do not have to attend these routine appearances. However, typically your presence will be required at substantive hearings and pretrial conferences.
If a settlement is reached, you will have to go to the prove-up and testify regarding some basic information and the substance of the agreement. If a settlement is not reached, the case will ultimately go to trial, where you will be required to attend.