Frequently Asked Questions Concerning Divorce

Q: Does it matter who files first for divorce?

A: Generally, it does not matter a great deal who files first. Statistically, more than 90 percent of divorce cases are settled rather than tried. However, some lawyers believe the party who files first can be of consequence if a case proceeds to trial since the plaintiff will have the opportunity to present evidence first in the event of trial.

Q: Is it possible to avoid having a spouse formally served with the divorce documents?

A: Yes. Service of process can be avoided by your spouse or your spouse's lawyer voluntarily filing an appearance. Often, lawyers will contact one another to determine whether he or she will file an appearance to avoid the necessity of service of process. The decision of whether to take a cooperative approach and send a copy of the petition for dissolution of marriage to your spouse or their attorney is usually made based upon whether or not the spouse may try to avoid service if he or she is informed of the divorce filing prior to service.

Q: After a party is served with process, how much time will they have to hire an attorney or file an appearance?

A: In an Illinois divorce (dissolution of marriage) case, a person has 30 days from the date they are served with a summons to file an appearance and a response to the petition for dissolution of marriage. However, there are no "divorce police." It is up to the petitioner to file motions to bring the other party into court and obtain orders to allow the case to proceed.

Q: How long does it take in Illinois to get a divorce?

A: Since each case is unique, there is generally no way to determine how long it will take to obtain dissolution of your marriage. The exception to this rule is that under the Supreme Court Rules since July 2006, child custody proceedings are supposed to be expedited and are supposed to be resolved within 18 months after service. If the 18-month time frame is not met, the court is to make written findings as to the reason for the delay.

The most that can be generally stated as to issues which are involved in a case other than custody is that the more issues that are presented to the court, the longer the case will generally take to complete. Cases that require frequent trips to court take longer to resolve since court dockets are crowded. Litigation is the most time-consuming way to resolve an issue. The length of your divorce also depends on a number of factors, including the county in which the case is filed.

Q: How much will my divorce cost?

A: Your attorney's time costs money. Thus, the longer it takes to settle or try a case, the more it will cost. The fees incurred in a divorce vary depending upon the facts and issues involved in the case. Domestic relations attorneys charge an hourly rate and will rarely work for a flat fee due to the uncertain nature of divorce litigation. Most attorneys require a retainer fee to be paid as an advance against future fees and costs that will be incurred in your case. The amount of the retainer depends on the nature of the disputed issues. Factors affecting the total fee include the level of hostility between the parties, the experience of the attorneys, the complexity of the legal and factual issues, and the general level of cooperation between the parties.

Q: Will my spouse be required to pay my attorney's fees?

A: Not necessarily. Illinois law regarding payment of attorney's fees is complex. There are two main types of awards, interim awards and contribution awards. Interim awards of attorney's fees are those that are temporary awards — they are made while a case is still pending. Contribution awards are made at the conclusion of a case.

The Illinois law regarding attorney's fees is often referred to as the "leveling the playing field" statute, although it is actually a series of provisions affecting the payment of attorney's fees in divorce cases. The goal of the statute is to allow each side in a divorce case to have equal access to legal representation. Additionally, if a court order is violated and the spouse seeking to enforce the order is forced to incur attorney's fees and costs, the court should order that the fees and costs be reimbursed to the enforcing party upon a finding that the individual violating the court order did so without compelling legal cause or justification.

Q: How do I choose grounds for my divorce?

A: On Jan. 1, 2016, Illinois law eliminated all grounds for divorce other than "irreconcilable differences." Previously, it was possible to seek divorce on the grounds of impotency, adultery and other reasons. The significance of these grounds for divorce that were allowed previously were more symbolic than actual since they did not impact the distribution of marital property, award of maintenance or child custody decisions. By statute, those issues must be decided "without regard to marital misconduct."

Q: What is a legal separation?

A: A legal separation is a formal court proceeding whereby the court will grant a decree for legal separation. Contrary to popular misunderstanding, it is not the period of time from the filing of the Petition for Dissolution of Marriage through the entry of the Judgment for Dissolution of Marriage. A separation proceeding can only be filed by a spouse who is living separate, and apart from his or her spouse without fault. Legal separations in Illinois are infrequently used. However, they are occasionally filed by:

  • People attempting to protect their respective assets from the other's creditors because once the legal separation is granted, bills incurred by one spouse are not the liability of the other spouse
  • People who cannot get a divorce for religious reasons
  • People with an extended medical condition who would not be able to maintain or afford medical insurance on a long term basis after a divorce

Q: Once a divorce is filed, is the other party required to vacate the marital residence?

A: No. Generally, there are only two methods to forcibly remove a spouse from the marital residence:

  • A petition for exclusive possession of the residence brought pursuant to the Illinois Marriage and Dissolution of Marriage Act
  • The filing of a domestic violence proceeding (also known as petition for an order of protection)