The Divorce Process in Court

The Petition
The first step in the process of divorce is the filing of a Petition for Dissolution of Marriage. The person who files the Petition is identified as the Petitioner (or Plaintiff) and the spouse is identified as the Respondent (or Defendant). A Petition for Dissolution of Marriage sets forth several basic facts about you, your spouse and your children. The document itself is public record. Therefore, the Petition is usually very brief, often only two or three pages in length, and does not contain a great deal of very personal information (e.g., income, graphic details relating to the reason for the divorce, etc.).

The Petition must state the "grounds" for the divorce. In Illinois, divorce can be granted based on either "fault" grounds or "no fault" grounds. The statute governing divorce is very specific about what type of conduct constitutes "fault" and what conditions must exist under the "no fault" ground. The Illinois version of the "no fault" ground is entitled "irreconcilable differences." In Illinois, irreconcilable differences is the most commonly used ground for divorce because it negates the need to air anyone's dirty laundry in open court. The person who files the Petition does not receive any type of preferential treatment from the Court. Which party files first is irrelevant. The "fault" grounds for divorce in Illinois are:

• adultery
• bigamy
• physical cruelty
• mental cruelty
• desertion
• drug addiction
• conviction of a felony
• impotency.

Service of Process
Once the Petition is filed with the Court, due process requires that the Respondent be "served" with the Petition and a Summons to Appear. Clients are often highly concerned about how their spouse will be "served". Imagine being at work and having a sheriff appear and serve you with divorce papers in front of your coworkers. At Debra J. Braselton, PC, we have well-established relationships with all local sheriff's departments and private process servers who handle our service of process in an expedient, dignified and professional manner.

Our firm strives to use the most appropriate method of service depending on the facts of the case. For example, if a divorce is amicable and the Respondent has already retained counsel, we will contact the spouse's lawyer and arrange to have the attorney accept service on behalf of the spouse. Our private process servers often contact the spouse and arrange to meet him or her in a convenient, private location where service can be effectuated without embarrassment. However, when there is a history of domestic violence or substance abuse, it is often wisest and safest to utilize the services of law enforcement personnel to effectuate service of process.

The Response
Once served, your spouse has 30 days to file a written Response to the Petition. Most commonly, the spouse retains counsel very shortly after being served with divorce papers. If he/she fails to file a formal Response, the Petitioner may request that the Court enter a "default judgment." In default cases, proof is presented to the Judge showing that the Respondent was aware of the Petition and he/she has failed to answer. The Judge will then divide the marital property equitably and the divorce will be granted.

If you are served with a Petition you must file your Response or other opposing papers within a certain time or you will lose your right to present your side of the case to the court. If you fail to file a Response in a timely fashion a Judgment of Default could be entered against you, granting your spouse all of the relief requested in the Petition.

Temporary orders
Temporary orders, set the rules while the case is pending. Either party can ask the court to enter temporary orders regarding such issues as who stays in the house, who is responsible for the children and who pays which bills. If there is a concern that one spouse may deplete, sell, take control of or otherwise encumber marital assets, a Temporary Restraining Order or Preliminary Injunction may be entered. Restraining Orders and Injunctions prohibit (rather than require) certain actions. Once a Response has been filed, the attorneys can discuss whether temporary support needs to be ordered. Temporary support is the payment of child support, maintenance and marital expenses during the pendency of the divorce case. In many cases, the spouses live together while the divorce is pending and continue handling finances in their usual manner. Thus, temporary support orders are not needed. If the spouses are not living together and/or sharing expenses, the court can order that specific amounts be paid for child support, maintenance and marital bills. Temporary support orders can either be entered by agreement of counsel or by order of court after a full hearing. It is in the parties' best interest to agree upon reasonable arrangements while the case is pending rather than incur additional legal fees and add to bad feelings by having to go to court for temporary orders. In a few states, some temporary orders automatically go into effect when a divorce proceeding is filed or the other spouse is served.

Discovery
Financial investigation is the next step in a divorce case. Each spouse is entitled to information from the other about the case. This portion of the case involves determination of the value of the marital estate or "discovery". There are several different types of discovery procedures in Illinois. "Interrogatories" are written questions that require written answers from the opposing party. A "Request for Production of Documents" is a means by which one party may obtain documents from the other. The opposing party is required to produce all requested documents that are in his possession or reasonable available to him. A "deposition" is a proceeding where the party or their witness, is placed under oath and required to answer questions posed by the opposing attorney. A deposition is usually taken in a lawyer's office while a court reporter takes down what is said and then prepares a transcript. If your deposition is to be taken, there will be advance notice and your lawyer will discuss the procedure with you. In all counties surrounding Chicago, the parties are required to file a comprehensive financial statement within about 60 days after the Petition is filed. The comprehensive financial statement is a summary of the income, assets and liabilities of each party.

If the assets and debts of the marriage are readily ascertainable and agreed on by the parties, they may choose to waive formal discovery. However, if either party disagrees with their spouse's estimate of value or the amount of debt attributable to each party, formal discovery is necessary and will be undertaken. . Discovery may be a simple, speedy process or one consuming a great deal of time, energy and money. Discovery may be conducted informally. It is often more efficient and less expensive for lawyers to informally exchange documents and information than to send and respond to interrogatories and requests for production documents and to take depositions.

Negotiated settlement
When the value of the marital estate is determined, negotiations for settlement commence. Sometimes an agreement regarding division of the marital estate and issues related to child custody can be achieved quickly and easily between the parties. Once an agreement is reached, a Marital Settlement Agreement is drafted and presented to both parties for review and signature. When Agreement is completed and signed by both parties, it is presented to the Court along with a proposed Judgment for Dissolution of Marriage. Brief testimony is taken in court before the Judge, who reviews the proposed settlement and judgment to ensure they are equitable, and a final divorce decree is entered. In such cases, the parties appear before a Judge only once.

Custody and visitation are also issues subject to negotiation. If the parties agree early on custody and visitation, a temporary order may be entered which will stay in effect until the case concludes and a Judgment is entered. If the parties cannot agree on issues related to custody and visitation, the Court may order the parties to mediation or evaluation. See our page entitled Custody and Visitation for further information.

During the negotiation phase of the case, the attorneys will be required to appear in court on a monthly basis and advise the judge on the progress on the case. These court appearances are called "status hearings."

The vast majority of divorce cases are settled before trial. People are more likely to obey a judgment which is based on their agreement than one which has been imposed on them by a judge. For these reasons, following discovery - and at any time, even during trial - the spouses and their lawyers should try to negotiate a settlement.

Experienced divorce lawyers are usually expert negotiators as well. Your attorney should be able to provide you with the best and worst case scenarios once the discovery has been completed. Your attorney should also be able to discuss various options for settlement of your case. For example, it is common in Illinois for a spouse who would otherwise receive maintenance to receive a greater share of the marital assets in exchange for a waiver of the right to receive maintenance. Even if a case is settled by agreement and you never see the inside of the courthouse, there are certain legal procedures that have to be followed to turn your agreement into a judgment and end your marriage. A Marital Settlement Agreement is the document that controls the distribution of assets, allocation of liabilities and arrangements for support. A Parenting Agreement sets forth the custodial, parenting time and other important child-related arrangements.

Pretrial Conference
If the issues in the case cannot be resolved through negotiation, most courts require the parties and their lawyers to attend a settlement conference in which a judge listens to each side's arguments and provides his/her recommendations for settlement. Pretrial conferences are conducted in the Judge's chambers. Both attorneys present their respective positions to the Judge and the Judge makes recommendations for settlement, indicating how he or she would rule on certain issues if presented at trial. The Judge's pretrial recommendations are not binding on the parties but they are important because they indicate how the Judge believes the case should be settled.

A pretrial conference can be held on all issues or just those specific issues that are in dispute. In some counties in Illinois the pretrial judge is the same judge who will try the case if it does not settle. In other counties, it is standard practice to have a different judge for trial than the one who conducted the pretrial conference. Although your lawyer may recommend that you accept or reject a particular settlement proposal, the decision to settle or not to settle is yours. Your lawyer cannot and will not make that decision for you. Pretrial conference is often the best motivator for the parties in reaching a final settlement case.

Trial
If you and your spouse cannot settle your case, it will go to trial. At trial you each tell your story to the judge. It is told through your testimony, the testimony of other witnesses, and documents called exhibits.

During the months preceding the trial, your attorney will be preparing your case. Trial preparation includes interviewing potential witnesses, reviewing expert's reports, taking depositions, reviewing the discovery produced by your spouse, preparing exhibits and entering into stipulations with opposing counsel. Thorough preparation for trial is essential to putting on a good case.

Trials range in duration from one day to several weeks, depending on the nature and complexity of the issues involved in your case. There are no jury trials in divorce cases. The decisions are made solely by the Judge. Trial is likely to be expensive and unpleasant. However, trial is necessary in a small number of cases. It is safe to say that neither party is completely satisfied with the outcome of a trial. The only certain result is that the terms of your divorce will be dictated to you and you will be required to follow the judge's orders. The assets and liabilities of your marriage will be divided by the judge; when you see your children and even what holidays you celebrate with them will be imposed; the amount and duration of child support and alimony will be set by court order. If either party is dissatisfied with the Judge's decision, they have a limited amount of time to ask the Judge to reconsider and/or appeal the decision.

Judgment
Following trial, or a negotiated settlement, a Judgment of Dissolution of Marriage will be signed by the Judge. This document includes all of the decisions that have been made in the case and concludes the proceedings.

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About The Law Firm of Debra J. Braselton, P.C.
Debra Braselton is an experienced adoption, divorce, and collaborative law attorney practicing in Chicago, Oak Brook, Naperville, and other nearby areas in Illinois. Her caring approach and vast experience in practice can bring invaluable knowledge to your adoption, divorce, or collaborative law case. If you are in need of an experienced and professional law firm practicing divorce law, adoption law, family law, or collaborative law in Illinois, call The Law Firm of Debra J. Braselton, P.C. today.

Please contact us for more information:

The Law Firm of Debra J. Braselton, P.C.
One Oakbrook Terrace, Suite 418
Oakbrook Terrace, IL 60181
Telephone (630) 261-1222
Facsimile (630) 261-1229
info@family-law-illinois.com