“I’ve been served and want to settle this without any drama… what now?”: The A, B, C, and [D] in your uncontested divorce.
Divorce can be a scary and overwhelming process. Aside from emotional and financial concerns, you are now faced with learning more about the legal system and the ways in which the law dictates how your legal relationship will be dissolved. Whether you have your own attorney or not, the divorce process can feel like learning a foreign language. Below are some important steps to keep in mind for divorce in Illinois.
A) Appearance and first court date
A divorce proceeding is started when one party files a Petition for Dissolution of Marriage. Once filed, that person is the “Petitioner.” There is no advantage given to the person who files first. A Petition is merely the first document that starts the divorce process. When a Petition for Dissolution of Marriage is filed, however, the other spouse must be properly served. In Illinois, a Sheriff or a court-approved “special process server” will locate the other spouse at an address provided by the Petitioner. In many uncontested divorces the other spouse will waive service so as to avoid the embarrassment and/or unnecessary cost of being formally served with papers. To avoid formal service of the Petition and Summons, the responding party, the “Respondent,” must file a formal Appearance in the court case, either on their own (“pro se”) or via their own attorney.
Once both of you are officially in the case, the timeline of your divorce depends on how swiftly you and your spouse can reach an agreement. Typically, if there is no formal activity in the case in the way of documents or pleadings being filed, the Court will automatically set a court appearance approximately 90 days out from time of filing. This first appearance is a “status date,” where your attorney will report to the Court the basic facts of the case and whether the Petitioner and Respondent are working on settlement without the Court’s assistance. If the parties are ready to finalize their case sooner or have a motion to present, either party can schedule an earlier court date. If the parties have reached their own agreement, they can schedule a date for finalizing the divorce, provided all requirements have been met. If the parties cannot agree on an issue, the divorce is no longer “uncontested.” If the parties cannot agree on child support or the division of property, for example, the timeline of your divorce is less predictable, as it depends on the cooperation of your spouse, the amount of money you can/want to spend on litigation, and the actual ability of you and your spouse to reach a reasonable settlement.
B) Responsive pleadings and motions
Whether a divorce is contested or uncontested, there are certain filing requirements that must be met. When a Petition for Dissolution of Marriage is filed, a formal Answer is typically filed after the Appearance. In some instances, especially when the Respondent is pro se, there may only be an Appearance on file and not an Answer, which will not impact the final resolution of your case. In most cases, however, it is typical to have an Answer on file that formally addresses each and every allegation made in the Petition for Dissolution of Marriage. When things seem “friendly,” it is often crucial to preserve all of your legal rights by properly filing an Answer to the Petition. In the event your divorce becomes contested, there may also be various motions filed throughout the course of your case. It is important to file responses in a timely manner. If you do not have an attorney, you may find it necessary to hire an attorney if your case becomes contested because motions involve application of current law as it applies to the unique facts of your case. A judge will rule on your argument as it is presented to the court and an attorney can present the facts of your case in the best light possible.
C) Discovery and Settlement
What is “discovery”? Discovery is the process by which each party “discovers” or is informed of the other spouse’s income, assets, expenses, and liabilities. In any case in which there will be an exchange of money or property- whether it be child support, maintenance or the sale of real estate- each party is required by local rule to exchange a Financial Affidavit. A Financial Affidavit is a disclosure, under oath, of one’s income, assets, expenses, and liabilities. In the State of Illinois, a Financial Affidavit requires supporting documentation, including paystubs, income tax returns, and recent bank statements. A Financial Affidavit is considered the most basic type of discovery and should be exchanged in every divorce case.
If a divorce remains uncontested and both parties agree regarding the disposition of property, assets, debt, support and/or maintenance, it is common to proceed without formal discovery. 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 cases where there is suspected financial wrongdoing or hidden assets, some discovery tools used are depositions, business valuations, and subpoenas.
In an uncontested divorce, there are likely no motions or pleadings filed, which are formal documents asking the court to rule on specific issues. An uncontested divorce means the parties will be able to reach their own agreement without the court deciding on issues. An attorney will make sure your agreement is valid, fair, and enforceable, and will walk you through all the procedural steps. The final court date for a divorce is called a “Prove-up.” On this court date, the Petitioner must answer a series of questions under oath in front of the Judge. At this time, the court will make sure all legal requirements are met and the judge has the authority to grant the divorce that day.
If you are considering divorce, reach out to our team to schedule a consultation. We make it our mission to make sure our clients understand the divorce process each step of the way.