Divorce in Illinois: The Legal Process, Your Rights, and What to Expect - Brossura

Peskind, Steven N.

Brossura

ISBN 10: 1938803663 ISBN 13: 9781938803666

Casa editrice: Addicus Books, 2013

Riassunto

Providing accurate and objective information to help make the right decisions during a divorce in Illinois, this guide provides answers to 360 queries such as What is the mediation process in Illinois and is it required? How quickly can one get a divorce? Who decides who gets the cars, the pets, and the house? What actions might influence child custody? How are bills divided and paid during the divorce? How much will a divorce cost? and Will a spouse have to pay some or all attorney fees? Structured in a question-and-answer format, this divorce handbook provides clear and concise responses to help build confidence and give the peace of mind needed to meet the challenges of a divorce proceeding.

Su questo libro

Informazioni sull'autore

Steven N. Peskind has practiced law in Illinois for more than 25 years and has argued before the Illinois Supreme Court for custodial parent rights. He is a member of the American Academy of Matrimonial Lawyers and of the American Society of Writers on Legal Subjects, and he serves on the faculty of the Family Law Trial Advocacy Institute. He has been repeatedly listed in the Directory of Super Lawyers by his peers. He lives in St. Charles, Illinois.

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Divorce in Illinois

The Legal Process, Your Rights, and What to Expect

By Steven N. Peskind

Addicus Books, Inc.

Copyright © 2014 Steven N. Peskind
All rights reserved.

ISBN: 978-1-938803-66-6

Contents

Acknowledgments, 
Introduction, 
1 Understanding the Divorce Process, 
2 Coping with Stress during the Divorce Process, 
3 Working with an Attorney, 
4 Attorney Fees and Costs, 
5 The Discovery Process, 
6 Mediation and Negotiation, 
7 Emergency: When You Fear Your Spouse, 
8 Child Custody, 
9 Child Support, 
10 Maintenance, 
11 Property and Debt, 
12 Benefits: Insurance, Retirement, and Pensions, 
13 Prenuptial and Postnuptial Agreements, 
14 Taxes, 
15 Going to Court, 
16 The Appeals Process, 
In Closing, 
Resources, 
Glossary, 
Index, 
About the Author, 

CHAPTER 1

Understanding the Divorce Process

At a time when your life may feel like it's in utter chaos, sometimes the smallest bit of predictability can bring a sense of comfort. The outcome of your divorce may be unknown, but there is one part of your divorce that does have some measure of predictability, and that is the divorce process itself.

Most divorces proceed in a step-by-step manner. Despite the uniqueness of your divorce, you can generally count on one phase of your divorce following the next. Sometimes just realizing you are completing stages and moving forward with your divorce can reassure you that the process will come to an end.

You may find that by developing a basic understanding of the divorce process, you won't be confused when your attorney starts talking about "depositions" or "going to trial." Such insights can reduce your frustration because you understand why each step is needed. It will support you to begin preparing for what comes next. Most importantly, understanding the divorce process will make it easier to go through a divorce.

1.1 What steps are taken during the divorce process?

The divorce process in Illinois typically involves the steps listed on the following two pages.

The Divorce Process

Obtain a referral for a lawyer.

Schedule an appointment with an attorney.

Prepare questions and any reference material (such as tax returns) for the initial consultation.

Meet with the lawyer.

Pay retainer and sign retainer agreement. Determine, with the lawyer, what issues need to be addressed immediately.

Provide requested information and documents to your lawyer. Take other actions as advised by lawyer, such as opening or closing financial accounts, cancelling joint credit cards, etc.

Lawyer prepares petition for dissolution of marriage and gets the case ready for filing.

Lawyer files the petition with the clerk of the court. Assuming no safety concerns, and you are comfortable doing so, tell your spouse you filed for the divorce, and your lawyer will send the documents.

OR

Sheriff or private process server delivers papers to spouse. Where necessary, the lawyer seeks emergency temporary restraining orders (without notice to your spouse) to restrain improper use of money or removal of the children from the state.

Lawyers negotiate interim matters such as temporary custody, support, and temporary possession of the family home. If necessary, a court date is scheduled on those matters.

Agree on temporary issues and the judge enters an agreed order.

OR

The judge resolves temporary issues, either informally through a conference, or at an actual hearing.

Where required by court rules, both parties complete their financial disclosure forms summarizing their income, expenses, assets, and liabilities.

If there are minor children, parties comply with court rules and attend parent education class. If there is no agreement concerning custody, the parties must attend mediation and try to determine temporary and final parenting arrangements.

Both sides conduct discovery to obtain information regarding all relevant facts. Value all assets, using expert opinions if necessary.

Client confers with attorney to review facts, identify issues, assess strengths and weaknesses of the case, review strategy, and develop proposal for settlement.

Parties negotiate using written proposals, mediation, settlement conferences, or conferences with the judge.

Parties reach agreement on all issues.

Attorney prepares settlement agreement and all companion documents necessary to finalize the divorce.

OR

If the parties cannot reach an agreement, the attorneys request a trial date. Trial preparations proceed, including preparation of witnesses, compiling exhibits, legal research on contested issues, pretrial motions, trial brief, preparation of direct and cross- examination of witnesses, preparation of opening statement, subpoena of witnesses, closing argument, and suggestions to the court.

Trial

Judge makes decision and enters a judgment for dissolution.

OR

Attorney prepares judgment based upon court ruling. Decree is submitted to judge for signature.

Judge signs judgment of dissolution. Prepare and sign documents (deeds or titles) according to the decree.

1.2 Must I have an attorney to get a divorce in Illinois?

You are not required to have an attorney to obtain a divorce in Illinois. A person proceeding without a lawyer is acting pro se (pronounced pro-say). Although permissible, representing yourself is rarely advisable if your case involves children, maintenance, significant property, or debts. If you are considering going it alone, you should at least consult with an attorney to discuss your rights and duties under the law. Undoubtedly, you will benefit from the opportunity to learn about the process and its pitfalls. Meeting with a lawyer can also help you decide whether to proceed on your own.

Some people cannot afford a lawyer, and others choose not to use a lawyer as a way to save money. Today, many people are empowered by information found on the Internet. But, a lawyer is more than merely an information bank. Good lawyers possess skills such as judgment, wisdom, and the ability to help you make choices based upon your long-term interests. Good lawyers know not only the law, but the judge as well: what the judge likes and dislikes in the presentation of a case. Also, when you represent yourself, you are deprived of the ability to analyze your circumstances objectively and might make decisions based on emotion rather than reason. As Abraham Lincoln famously observed, "A lawyer who represents himself has a fool for a client." The same can be said about nonlawyers.

In order to help people conduct a simple divorce on their own, the Illinois legislature has created a "Joint Simplified Dissolution Procedure." The statute can be found in the database of Illinois Compiled statutes at: www.ilga.gov/legislation/ilcs/ilcs.asp. This statute provides a streamlined procedure for people with no children or assets to get a divorce. If you are interested in using the Joint Simplified Dissolution Procedure, contact the clerk of the court's office in the county where you live. The clerk's office has a brochure and other printed materials to help you proceed on your own.

1.3. What is the difference between a divorce and a legal separation?

People with marital problems sometimes consider a legal separation rather than a divorce because a separation seems less permanent, less drastic. Some look at a legal separation as "divorce-lite." If you and your spouse want to just separate or take a "time out" from each other, work out an informal agreement regarding payment of bills and child-related matters, and then just separate without going to court. A legal separation is a formal court proceeding with the costs and expenses that go along with any court case.

If you do file a petition for legal separation, the judge will enter orders for maintenance, support, and custody. If you both agree, you can also divide your assets.

Once the court enters a decree of legal separation, you are still married. You can file joint taxes as a married couple and may be eligible for health insurance and retirement benefits as any other spouse. If your spouse dies, you are considered a surviving spouse for the purposes of inheritance and probate laws. Any assets or debts that either of you acquire after the decree of legal separation remain your separate property or debt, in the event you later decide to divorce.

Today people rarely use legal separations. The procedure is temporary and provides no real closure of the relationship. Since you are legally married, even if legally separated, you will need to get a divorce if you want to remarry or later decide to end the marriage with finality.

Most commonly today, people file legal separations to protect assets from creditors if one of the spouses needs long-term care. Sometimes people use this procedure if they anticipate a long-term separation and want to benefit from tax deductions for the payment of maintenance. A legal separation usually isn't appropriate for someone who wants to change the status of their marriage, but isn't ready to "pull the trigger" for the divorce. Separate and get a good counselor. Don't incur the unnecessary cost of the legal separation. If the marriage can't be salvaged through counseling, proceed with a divorce at that point.

1.4 I made a terrible mistake. Can I get an annulment instead of a divorce?

The procedure formerly known as an annulment is a now known as a Declaration of Invalidity of Marriage. A marriage declared invalid is considered legally null and void; it is as though you were never married. To be eligible for this, you need to prove:

1. One of the parties lacked capacity to consent to the marriage due to mental incapacity.

2. One of the parties was drunk or lacked capacity to consent due to drugs.

3. One of the parties married under duress.

4. One of the parties was forced to marry (the proverbial "shotgun wedding").

5. The marriage was procured by fraud.

6. One of the parties lacked the physical capacity to have sexual intercourse at the time of the marriage and the other party was unaware of that incapacity.

7. One of the parties was sixteen or seventeen years old and didn't have the consent of his or her parent or guardian.

8. The marriage was prohibited (for example, a marriage might be illegal because one of the parties never divorced their former spouse).

For items (1) through (5) above, the petition to declare the marriage invalid must be filed within ninety days of the discovery of these circumstances. For item number (6) the petition must be filed within one year of the discovery. For items (7) and (8), the petition must be filed before the underage spouse may legally marry without consent. If the marriage was illegal, it may be brought at any time prior to the death of one of the parties.

1.5 I have a civil union and want to dissolve it. How do I do that?

You end a civil union the same way as a divorce: the procedures are identical. To end a civil union, you file a petition for dissolution of civil union and proceed as you would if you were a married couple divorcing. The substantive law is the same as in a divorce. The court can enter orders dividing property, determining custody, and setting up support and maintenance. Due to current developments in federal law pertaining to same-sex relationships, the tax deductibility of maintenance is uncertain. Consult with a tax professional to understand the implications of that aspect of a civil union dissolution.

1.6 Is Illinois a "no-fault" state or do I need grounds for a divorce?

Although Illinois requires grounds for a divorce, you may be eligible for the no-fault grounds of "irreconcilable differences." If you have been separated for two years prior to the final divorce hearing, you may get a divorce if you can prove that irreconcilable differences have caused the irretrievable breakdown of the marriage, that past attempts at reconciliation failed, and that future attempts would be impracticable and not in the best interest of the family. Couples can agree to waive the full two-year waiting period if they have been separated for at least six months. Separation does not require living in separate homes; rather, separation refers to the emotional relationship. If you both consider the marriage dead at a given point, you are considered separated even though you continue to reside in the same home.

Despite the frequent use of the no-fault grounds of irreconcilable differences, Illinois law still allows one spouse to allege fault-based grounds such as mental cruelty, physical cruelty, adultery, abandonment, and a variety of other grounds. If you do allege fault grounds, you will need to prove those grounds at a trial. If you can't prove grounds by sufficient evidence, you cannot proceed with other issues, and the divorce cannot be granted. Today, grounds are mostly symbolic, and the court can't consider them when deciding other divorce issues such as maintenance, support, or property division. You gain no advantage in the divorce by alleging fault versus no-fault (irreconcilable differences) grounds.

Sometimes people allege fault grounds because they are angry with their spouse — often rightfully so. But once you start the fight it is often hard to stop it when you become less angry.

Although there is nothing wrong with symbolically expressing your dismay over your spouse's conduct, the better approach is to go to counseling and learn to emotionally process the betrayal. Don't use the divorce proceeding as your method of choice to seek revenge. That frequently backfires and will only hurt you (and your children) more.

1.7 My spouse told me she will never "give" me a divorce. Can I get one in Illinois anyway?

Yes. Illinois does not require that your spouse agree to a divorce. A threat by your spouse not to "give" you a divorce is an idle threat.

Under Illinois law, if you allege fault grounds and present sufficient evidence supporting those grounds, the court can grant you a divorce without the consent of your spouse. Alternatively, if you have been separated for two years and allege irreconcilable differences, you can obtain a divorce without proving any grounds and without the consent of your spouse.

1.8 Do I have to get divorced in the same state I married in?

No. Regardless of where you were married, you may seek a divorce in Illinois subject to the residency requirements discussed below.

1.9 We just moved here: how long do I have to live in Illinois to get a divorce in Illinois?

You or your spouse must be a resident of Illinois for at least ninety days to divorce here. The ninety-day period applies to the date the final judgment is entered, so, theoretically, you could move to Illinois tomorrow, file a case, and seek temporary court orders. However, the court can't enter the divorce decree until you have lived here for the ninety-day period. This ninety-day rule also applies if you are in the armed forces and stationed in Illinois for at least ninety days.

1.10 Can I divorce my spouse in Illinois if he or she lives in another state?

Provided you meet the residency requirements for living in Illinois (ninety days), you can file for divorce even if your spouse lives in another state. The court has the power to grant a divorce regardless of the presence of your spouse. However, before the court can enter any orders for support or divide property, it will need to obtain personal jurisdiction over your spouse. This means that your spouse needs sufficient contacts with the state to enable the court to enter any orders affecting his or her rights. For example, if your spouse lived here with you and recently moved to another state, the Illinois Court would likely determine there are sufficient contacts to enter orders here. Or if your spouse owns property here, the court would assume jurisdiction. Assuming Illinois courts can properly obtain personal jurisdiction over the absent spouse, the court can enter any necessary orders or judgments, just as though your spouse lived in Illinois.

1.11 How can I divorce my spouse when I don't know where he or she lives now?

Illinois law allows you to divorce even if you do not know the current address of your spouse. First, attempt to locate your spouse. Contact family members, friends, former coworkers, or anyone else who might know your spouse's whereabouts. Use the Internet and any other resource available.

If you can't find your spouse, you may publish notice of the divorce in a newspaper. This procedure involves the clerk of the court running an ad in a local newspaper for several consecutive weeks, notifying the public of your intent to proceed with the divorce. Whether your spouse actually sees the ad is immaterial; the notice requirement is met by publishing in the county where the case is filed. The judge may then grant the divorce without more notice. While the judge may grant your divorce by this form of notice, you may not get other court orders such as child-support or maintenance orders by this method. Talk to your attorney about your options and rights if you don't know where your spouse is living.

1.12 I just moved to a different county within Illinois. Do I have to file in the county where my spouse lives?

You may file your divorce complaint either in the county where you reside or in the county where your spouse resides.

1.13 I immigrated to Illinois. Will my immigration status stop me from getting a divorce?

If you meet the residency requirements for divorce in Illinois, you can get a divorce here notwithstanding your immigration status. Talk to your immigration lawyer about the likelihood of a divorce leading to immigration problems.

If you are a victim of domestic violence, tell your lawyer. The federal Violence Against Women Act provides protection for abuse survivors, including both documented and undocumented immigrants.

(Continues...)

Excerpted from Divorce in Illinois by Steven N. Peskind. Copyright © 2014 Steven N. Peskind. Excerpted by permission of Addicus Books, Inc..
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Dettagli dell'edizione

• Editore: Addicus Books
• Data di pubblicazione: 2013
• Lingua: Inglese
• ISBN 10: 1938803663
• ISBN 13: 9781938803666
• Rilegatura: Copertina flessibile
• Numero di pagine: 236
• Contatto del produttore: non disponibile
• Persona responsabile: non disponibile