Illinois Uncontested Divorce
This information is an overview of the uncontested Illinois divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those "do it yourself divorce" filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Illinois.
"The Illinois Marriage and Dissolution of Marriage Act," 750 ILCS 4/401 et Seq., guides the divorce process in Illinois.
In Illinois the term irreconcilable differences describes what other jurisdictions call No-Fault divorce. It means that " ... differences have caused an irretrievable breakdown in the marriage, that past efforts at reconciliation have failed, that future efforts at reconciliation would be impractical and not in the best interests of the family." Divorce is also granted on seven major fault grounds: mental cruelty, adultery, alienation of affection, physical cruelty, drug addiction or drunkenness, infection of a sexually transmitted disease and conviction of a felony.
In Illinois, as in other states, both No-Fault and Fault divorce may be either contested or uncontested, but uncontested, No-Fault divorces move through the courts more quickly and less expensively.
The filing procedure for both No-Fault and Fault divorce is identical. In Illinois, the Petitioner (the party seeking the divorce) must be a resident of the state for at least 90 days before filing. The divorce may be filed in the county in the Circuit Court where he or she or the Respondent resides. In a No-Fault action, a divorce is granted when the couple lives apart and without cohabitation for two years (or six months if neither spouse contests the divorce). There is no minimum waiting period between the filing or a divorce petition and the granting of the dissolution.
In Illinois, the filing procedure and the forms of the necessary paperwork may vary from county to county. However, at a minimum, the following steps must be taken:
> File a petition for divorce in the Circuit County Court. This is called the Petition for Dissolution of Marriage.
The divorce process, therefore, begins with the filing of a Petition for Dissolution of Marriage. This must be served with a Summons by the sheriff or a private process server. When a divorce is uncontested, it may be finalized at a brief divorce hearing, which only the petitioner is required to attend. The fee for filing a divorce petition is different in each county.
For divorces other than the simplified divorce, Illinois requires the following information in the petition:
> the name, age, occupation, address and length of residence in Illinois of each spouse;
Notification takes the form of a Summons. The time for delivering the summons is determined by each county and is printed on a Service of Process form, which when signed proves that the papers were delivered and when returned becomes part of the record.
After the Summons, the Respondent may file an appearance and written response in the court. The appearance is a form he or she files in response to the petition. This must be filed with the court.
If both spouses agree to the divorce, they can then begin working on the Marital Settlement Agreement and/or the joint Parenting Agreement to submit to the court. Some couples may have written the Marital Settlement Agreement and/or the joint Parenting Agreement even before they file for divorce.
If both spouses don’t agree to the divorce, his or her response will contain allegations in the Petition. A hearing may be held. The court will issue pretrial orders, which may resolve, on a temporary basis, such disputes as living arrangements, custody, support and visitation. During this period, each side does discovery, where each party obtains information about the marriage, including depositions (which are sworn recorded question and answer statements).
Negotiations may continue in an effort to resolve disputed issues, but if the couple cannot or will not agree, a series of hearings are preliminary to the divorce trial, which is costly and enervating.
Illinois courts will grant a divorce if only one party resides in the state; however, the other spouse must be notified of the divorce and be given a reasonable opportunity to respond. If the other spouse cannot be located, courts require that a good faith effort "using reasonable means" has been tried. A spouse may divorce a missing spouse undertaking what is called Service by Publication -- a newspaper advertisement informing him or her that there is a divorce proceeding against him or her. In this routine, the Petitioner files for divorce in the normal manner, and then runs the advertisement in a newspaper of general circulation. The Petitioner must also sign an affidavit stating he or she looked for the spouse to the best of his or her ability, and the action then proceeds as what is called a default divorce.
In a default divorce, the Respondent does not do anything, and the Petitioner spouse wins the action by default.
When both the husband and wife agree and cooperate, an Illinois couple may obtain a simplified divorce (750 ILCS 5/451 - 5/467). This requires that they file a Joint Petition for Simplified Dissolution of Marriage. To do this, the couple must meet certain conditions that include the following:
> Neither the husband nor the wife is dependent on the other for support, or the dependent party is willing to sign away his or her right to support.
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