Are you feeling like your life is in utter chaos?
Are you considering divorce and wondering what the process will be like? While the deterioration of a marriage is heavy for a variety of reasons, understanding what options are available and the order of events that follow can help lighten some of that weight. Sometimes a bit of predictability can bring a sense of comfort.
A divorce is the option which formally ends the marriage and where the matrimonial courts have the widest powers to deal with the parties’ financial separation, so unless there is hope of a reconciliation, a legal separation (still a court involved event)or other significant reasons to warrant an annulment, a divorce is the option to end a marriage.
Most divorces proceed in a step-by-step manner. The best thing you can both do is obtain separate independent legal advice.
Your state's divorce laws will determine what steps you go through during the divorce process. In Illinois, we are not a community property state, so often heard of from California because of celebrity divorces. Illinois is an equitable distribution state. Illinois is also a No-fault state. We divorce based on irreconcilable differences. So, no matter what a scoundrel or other term comes to mind, in Illinois, it doesn’t matter.
While some variations exist, we've compiled a broad outline describing the sequence of events for most divorce cases from the original petition to the possibility of filing a motion to appeal. Marriages of short duration where there are no children or marital assets to split will see their way through the process quickly, others may turn into a long, drawn-out, and at times frustrating process. Every divorce is different, so along with these steps, you may have issues come up that pertain to your individual divorce.
Legal Separation vs. Divorce
Legal separation is an arrangement by which a couple remains married but live apart, following a court order. are not expected to live together anymore Some states do not have laws that allow a couple to participate in a legal separation. In those states, you are married until a court decides otherwise. If your state allows couples to separate legally when one or the other spouse leaves the family residence, your attorney will petition the courts for a separation agreement. This agreement protects the interests of both spouses and any children of the marriage by making sure that both parties meet their legal responsibilities to each other.
Sometimes, this is called “divorce-lite”. If you and your spouse get along well enough to work out financial plans for both parties and any children living in the home, then a court process may not be necessary. However, communication can break down quickly or emotions can come into play and one party, without the court proceedings, withholds maintenance, support, and parental responsibility. A legal separation is seldom used these days for this reason. The procedure is temporary. Don’t incur the unnecessary cost of the legal separation. If the marriage cant be salvaged though marital counseling, proceed with a divorce at that point.
Divorce Process Steps
It's time to select your attorney. Ask for referrals from friends or family members that have gone through a divorce.
| Original Petition for Divorce
To begin the divorce process, a document called “Original Petition for Divorce” is filed with your local court clerk. In some states, this is referred to as a “Letter of Complaint.” Both documents are requests that the court grant a divorce and list any relief the party filing for divorce feels they are due.
The original petition will identify the parties to the divorce and any children they may have. The party filing for divorce will have to state a reason as part of the petition or letter. In Illinois, it is Irreconcilable differences for our “No Fault“state. The person filing for the divorce will be named the “petitioner” by the courts while the other party to the divorce is referred to as the “respondent” or, in some states, the “defendant.”
Your time and having a lawyer assist in completing the paperwork as any mistakes can be costly. Court staff cannot legally advise and will not help to complete the form.
The original petition or letter of complaint is then served on the respondent, normally by a member of the local sheriff's office or private process delivers papers to the spouse. Once the respondent has been served, they have 21 days to hire an attorney and respond to the original petition for divorce. It is at this time that either party may ask for restraining orders, protective orders, or temporary orders pertaining to child support and alimony.
| Temporary Divorce Orders
This is where a judge has reviewed the application and approves that the spouses are entitled to a divorce, but they are not yet divorced. The process has a built-in set reflection period so unless there are exceptional circumstances to warrant expediting the process, the spouses must wait. The court can issue temporary orders that outline specific actions that must take place immediately and last until the final divorce hearing. Examples of things covered in temporary orders are child support, spousal support, and child custody. These orders are legally binding and not following them will mean finding yourself in contempt of court, where you can be jailed or fined according to the discretion of the judge.
| Divorce Discovery
Discovery is a legal mechanism designed for gathering information about either party to the divorce. Although states and their laws may vary, the four steps of the discovery process below are common and will probably become a part of your divorce.
Disclosures: Every state has rules of civil procedure that determine the way disclosure is conducted. Attorneys for both parties request certain items from the other party. The list of items is sent to the opposition with 30 days to respond.
Interrogatories: This is a list of questions that the attorneys send to the opposing side. Most states set limits on the number of questions and grant a response time of 30 days.
Admissions of Fact: This is a written list of facts that is directed at the other party. The party receiving the list is asked to either admit to or deny each fact.
Request for Production: This is when attorneys request documents such as bank statements, statements of income, and other information that they feel will benefit their client. The party receiving a request has 30 days to produce the materials. This part of the process can become a major obstacle to a swift divorce as people may not want to turn over personal information and can use delay tactics to stall.
During depositions, attorneys will take sworn testimony from the opposing party and any witnesses involved. Anything said during a deposition can be used in divorce court should an agreement not be met.
| Divorce Mediation
During mediation, both divorce parties meet to discuss any conflicts they may have and try to come to an agreement that meets the needs of both. The mediator is a court-appointed attorney or arbitrator and is there to negotiate a settlement between the parties. Naser advises seeking legal counsel before and during mediation, as mediators cannot provide legal advice but only serve as guides through the negotiations. "Mediation can take as many sessions as you need, so you can take a ‘let’s see how we go approach’ when committing to it," she adds. "In addition to being a much faster route to resolution than court proceedings, it is also cost-effective compared to what can be very costly court proceedings."
| Divorce Court
If mediation didn’t work and unresolved issues remain, a trial date will be set. During the trial, both parties have the chance to argue their case before a judge, who will then examine all the evidence and decide based on what they feel would be a proper divorce settlement and outcome. Court is the last resort and the only way for many spouses to force progress upon the other. I would avoid court if possible and don’t use it to punish the spouse. Settle out of court whenever possible. If settlement has not been reached by agreement between the spouses by the final hearing, then the judge will need to decide. There is no guarantee that a judge will be with you. My recommendation is to try to work out a settlement prior to the judge needing to make a ruling
Be amicable! Focus on the big-picture resolution rather than engaging in tit-for-tat, smaller disputes with your spouse that could worsen relations. Take the “high road”, especially if children are involved. Please consider their emotional well-being.
Most judges hand down orders within 14 days of the court date. If you don't hear something within a couple of weeks, contact your attorney and have them notify the court that you are still waiting for orders from the judge.
| What Happens After Divorce
Once a judge has made a decision, the parties to the divorce will sign the final decree of divorce. The final decree states how any marital property will be divided, any orders pertaining to custody of the children, child support amounts, any spousal maintenance that is ordered, and any other issues pertinent to the dissolution of the marriage.
Carefully read the wording of the final decree before signing. If you wish to make any changes, now is the time to request that be done. If there are any mistakes in the way the decree is worded, you want to catch those before adding your signature.
If you feel that the court's orders are unfair, you may file a motion to appeal the order and request a new hearing. This motion is filed with the same judge that put in place the orders and not many judges are going to set aside their own orders, so don't be surprised if your motion is denied. In this event, you file a second appeal with the state appellate court.
I'm passionate about handling real property issues in family law (divorce) cases. I love and enjoy helping people.
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