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.
> Notify the respondent that he or she has been sued. This is done with a Summons.
> Get a hearing date.
> Prepare forms needed for the hearing.
> Attend the hearing.
> Follow the judge’s order.

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;
> the date and place of marriage;
> if another divorce is pending in another jurisdiction;
> that the spouses are residents of Illinois and meet the state’s jurisdictional requirements;
> that grounds for divorce do exist;
`> if the wife is not now pregnant;
> arrangements for the support, custody and visitation of any children;
> arrangements for any spousal support;
> relief requested (such as dissolution of marriage, approval of marital settlement form and/or approval of parenting agreement).

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.
> Either the husband or the wife meets the 90-day residency requirement and considers Illinois to be his domicile.
> The marriage has failed because "[i]rreconciable differences have caused the irretrievable breakdown of the marriage," and the spouses have lived apart for six months or more, attempts at reconciliation have failed, and additional efforts are not practical and "not in the best interests of the family."
> The marriage is childless and the wife is not pregnant.
> The marriage lasted less than eight years.
> Neither party has any interest in real estate.
> The total fair market value of all marital property is less than $10,000, their combined gross income is less than $35,000, and neither party has a gross annual income from all sources of more than $20,000.
> Both spouses have made a disclosure of all assets and tax returns for the years of their marriage.
> Both spouses have a written agreement dividing all assets worth more than $100 and allocates "responsibilities for paying outstanding debts between them."

In a simplified divorce, both parties must appear at the divorce hearing to testify before the court. Both spouses must meet all conditions to file for a simplified divorce. If both spouses are qualified, the couple may file a Joint Petition for Simplified Dissolution of Marriage. Some counties offer brochures explaining the filing of a simplified divorce in that jurisdiction. Many couples cannot use the simplified divorce for obvious reasons, but many Circuit Courts focus on this when providing detailed instructions for filing for divorce. As part of a simplified divorce, both spouses must submit a sworn affidavit in which they swear under pain of perjury to divide their property in accordance with the agreement submitted to the court.

The majority of Illinois citizens who want to file pro se can either download the proper forms on the Circuit Court website on the Internet or obtain the forms at the courthouse.

Depending upon the trajectory of the divorce, in Illinois a couple may need between 10 and 20 forms during the course of a divorce. In addition the petition, summons and response, the most common form is the appearance form, which may be required in some counties when a petitioner files as a pro se litigant.

As mentioned, the petition for dissolution is custom tailored to the couple’s situation. This customization is in addition to the specifics required by each Circuit court.

The summons, which is used to notify the respondent that he or she is being sued, comes in a wide variety of formats. In divorce, the summons is attached to the petition for dissolution, and the package is his or her legal notice of the pending action.

An Affidavit of Response is used by the Respondent. The Petitioner normally uses this form when the respondent wants maintenance, child support, custody and payment of other fees.

The Judgement for Dissolution of Marriage goes with the petition, and it is custom written for the situation of the parties. It spells out the terms and conditions of the divorce. A party need to present this when applying for a marriage license for a future marriage.

In the event a couple agree to waive the two-year period of continuous separation provision, they must file a Stipulation of that fact.

Many Illinois counties now require the filing of a Financial Disclosure Statement of an Asset Disclosure Statement by each spouse in a divorce. (A Financial Disclosure Statement or an Asset Disclosure Statement are two names for the same document.) The primary use of this form, which also goes to the court, is the determination of support, maintenance and the division of property.