Does the idea of divorce conjure up images of angry men and women arguing in front of a judge in a brightly lit courtroom? Decades of Law & Order and countless movies have created the expectation that most divorces ultimately end in a dramatic trial. In reality, the vast majority of divorce cases here in Illinois and around the country do not go to trial; in fact, the number of cases that need to be litigated in front of a judge may be as low as five percent.
Instead, most divorces that are contested — meaning that the parties have disagreements over one or more issues — are generally resolved through a settlement, typically after negotiations or mediation conducted with the oversight and assistance of a knowledgeable family law attorney.
Whether a divorce is contested or uncontested, there may still be times when the parties must appear in court, even if they do ultimately settle — such as to participate in one or more “status dates” wherein your attorney will report the basic facts of the case and whether the parties are working on settlement without the Court’s assistance; to respond to any motions filed in court; and to attend the “prove-up,” the final court date at which the judge will make sure that all legal requirements are met and officially grant the divorce.
It is important to note that these court appearances are not the same thing as going to trial; a trial will only occur when there are conflicts that require a judge to hear evidence and issue a binding judgment.
What Issues or Disagreements Could Cause a Divorce Case to Go to Trial?
If a marriage is about entwining the lives of two parties, then a divorce is about dissolving those bonds — a process that will inevitably have major financial and personal ramifications for everyone involved. Some of the common issues that may lead to disagreements and conflict during a contested divorce include:
- Maintenance (formerly called spousal support or alimony). Maintenance refers to the amount that one spouse must pay the other on an ongoing basis following a divorce.The purpose of maintenance is to help an ex-spouse support themselves and live independently after the dissolution of their marriage. Maintenance can be awarded to either party. There may be disagreements over who should receive maintenance, how much those payments should be, and how long maintenance should be paid.
- Child support. Child support is intended to provide for the reasonable and necessary physical, mental and emotional health needs of a child. Parents may disagree over how much child support should be paid, which is determined by considering the income of each parent along with several other crucial, unique variables.
- Allocation of marital debt. When getting divorced, the parties must consider how they will divide up their shared debts.
- Division of marital property. In Illinois, all marital property is eligible to be divided during a divorce. Broadly speaking, marital property includes all assets and property acquired over the course of the marriage, and might include real estate, cars, furniture, and securities. Marital assets are meant to be divided equitably, based on each partner’s contributions to the marriage and their future opportunities for acquiring income.
- Parenting time and parental responsibilities. Parenting time refers to how often each parent will be responsible for the care of the child, including who the child will live with. In other states, this concept may be referred to as “custody” or “visitation.” “Parental responsibilities” encompasses both parenting time and significant decision-making responsibilities with respect to the child.
If the parties cannot agree on these issues, the timeline of your divorce will depend on a number of factors, including the cooperation of your spouse, the amount of money you can or want to spend on litigation, and your ability to actually reach a reasonable settlement with your spouse.
What Usually Happens at a Divorce Trial In Illinois?
In order to understand what happens when a divorce goes to trial, it’s important to start at the beginning.
A Brief Overview of the Illinois Divorce Process
Broadly speaking, a divorce proceeding begins when one party files a Petition for Dissolution of Marriage; this person becomes known as the “Petitioner.” Once the petition is filed, the other spouse (the “Respondent”) must be properly served. The Respondent will then typically file a formal appearance, either via an attorney or on their own (“pro se”). Next, the Respondent will typically file a formal answer, in which they respond to all of the allegations or issues raised by the Petition for Dissolution of Marriage.
Once the response is filed, the next period will involve discovery, negotiation, and settlement — though the exact timeline will be dependent on the unique variables of the situation. Discovery is the process through which each party learns more information about the other spouse’s income, assets, expenses, and liabilities; depending on the specifics of your situation, discovery may be quick and simple, or the longest and most drawn-out phase of your divorce. Discovery may be formal or informal. Formal discovery usually takes place when either there is a contested issue in the case, or when one spouse wants to be sure they have a complete picture of the other spouse’s finances. Formal discovery holds the other spouse accountable, and can give some assurance that everything has been disclosed.
In either case, a Financial Affidavit is required; this is a disclosure, under oath, of your income, assets, expenses, and liabilities, with supporting documentation. Discovery might also include written interrogatories, notice to produce documents, depositions, and subpoenas.
Following discovery, parties can negotiate over contested matters, including the division of assets, allocation of parental responsibility, and parenting time. If the parties can agree, they will sign a settlement agreement, which is then presented to the judge for review and approval. Your attorney will make sure your agreement is valid, fair, and enforceable, and will walk you through all the procedural steps involved while advocating for your position.
In the rare occurrence that the parties fail to reach a settlement, even after extensive negotiations, any remaining issues may need to be litigated in the courtroom — and a trial date will be scheduled.
Going to Trial
Divorce trials are bench trials, meaning that the judge makes all of the final determinations and decisions, rather than a jury. Prior to the beginning of a trial, pre-trial conferences will be held. In a pre-trial conference, the judge will review the facts of the case and arguments with the attorneys, and discuss scheduling, witnesses, and exhibits; he or she may also use this opportunity to encourage the attorneys to work with their clients to reach a settlement before the trial date. The judge may also offer another chance for a last-minute settlement immediately prior to the trial.
As with most civil trials, a divorce trial will include opening statements, in which each attorney lays out their client’s position. Attorneys will then present evidence and witness testimony. The parties involved in the divorce may be called to testify, as well as any expert witnesses who can lend a professional perspective on important issues (such as a doctor, accountant, or psychiatrist) and anyone else whose testimony may be relevant (such as a nanny, teacher, babysitter, or another witness). After direct examination, all witnesses can be cross-examined, meaning that both parties’ attorneys will be able to question each witness if they choose to do so. Attorneys will then issue closing statements.
A divorce trial may take anywhere from a few hours to multiple days, based on the complexity of the matter and the number of witnesses called.
Once all of the arguments and evidence have been presented, the judge will issue a decision resolving any outstanding issues. After this judgment has been issued, the marriage can be legally dissolved.
Do You Have Any More Questions About Divorce or Family Law in Chicago?
Understanding the many moving parts that go into an Illinois divorce can be confusing and exhausting, even under the best of circumstances. There are many details and conditions in family law that can be difficult to fully understand. Fortunately, you don’t have to go through this stressful time alone.
At The Law Offices of J. Jeltes, Ltd., we make it our mission to ensure that our clients understand the divorce process at each and every step of the way — from petition, to discovery, to settlement, to post-decree matters such as modifying parenting agreements or determining college contributions.
Our attorneys and staff are skilled in handling legal matters in some of life’s most challenging family transitions, including divorce and the many considerations that go along with it — including issues of property division, maintenance, allocation of marital debts, parental responsibility, and parenting time.
Our legal professionals are driven, attentive, and dedicated to achieving the best results possible. We truly understand that every situation is unique, and before hiring our firm our attorneys will provide you with a comprehensive one-on-one consultation to discuss your legal concerns and goals.
If you have any more questions about any aspect of divorce in Illinois, don’t hesitate to reach out to our team of experienced and compassionate advocates to continue the conversation.