BASIC FACTS ABOUT ILLINOIS
DISSOLUTION OF MARRIAGE PROCEEDINGS
The purpose of this memo is to provide an overview of Dissolution of
Marriage (divorce) proceedings and to provoke questions and understanding;
it is not intended to address all of the many issues involved or explain all
of the more painful realities of divorce. There are simple and totally
uncontested divorces and, in some cases, the mass production techniques of
some lawyers or clinics may be less expensive than our firm. Such cases
however, are rarely free of unexpected complications or misunderstandings.
For the purposes of this memo we are assuming a need for more thoughtful and
professional representation.
The Illinois Marriage and Dissolution of Marriage Act includes the provision
for "no fault" divorce. The Domestic Violence Act separately deals with
emotional and physical abuse where immediate protection is needed.
Clients frequently ask a number of pertinent questions about the law and the
court procedures. It is a strange and threatening new experience (for most),
and some basic explanation of the legal machinery is appropriate.
NOTE: While this memo presumes an attorney is involved for each party, such
is not always the case) and is not required by the law.
GROUNDS
The grounds for dissolution recognized in Illinois are the following:
● Impotency of either spouse (condition must have existed at the time of the
marriage and continued to the present).
● That either spouse was already married and not divorced or widowed at the
time of this marriage.
● Adultery committed subsequent to the marriage.
● Desertion without reasonable cause for at least one year.
● Habitual drunkenness for two years.
● Excessive use of addictive drugs for two years.
● That either spouse has attempted the life of the other by poison or other
means showing malice.
● Extreme and repeated physical cruelty.
● Extreme and repeated mental cruelty.
● Conviction of a felony or other infamous crime.
● Either spouse has infected the other with a communicable venereal disease
● Irreconcilable differences (no fault) requires 2 year separation) or 6
months, if case settled and parties sign a stipulation to waive the 2 year
requirement.
The act required to put the legal machinery in motion is the preparation and
filing of the Petition for Dissolution of Marriage by the plaintiff (husband
or wife, as the case may be) setting forth the facts necessary to prove one
or more of the above grounds for divorce and other relevant facts.
Frequently, both parties consider themselves aggrieved, and as soon as one
party files a petition, the other responds with a counter petition.
Considering that "no fault" grounds now may be used, and that in any event
the issues of who did what to whom have no bearing on property distribution
by law, such counter filing (unless for certain other unique procedural
requirements) may be counter productive heating up the battle and resulting
in higher legal fees. Upon filing in Cook County, the case is randomly
assigned to either one of four teams of Judges or one of the nine individual
trial calendars. Each team has one judge who is the presiding judge and
hears all pre-trial motions for temporary or emergency relief. Where the
case is assigned to one of the nine trial calendars) that judge hears all
matters from start (temporary orders) to finish (contested trial). The
objective in all cases is to settle the case without a contested trial.
Either party, during pendency of the case, may request temporary relief with
respect to maintenance, custody and support of children, or exclusive
possession of the home if the presence of one spouse is jeopardizing the
physical or mental well-being of the other spouse or the children, or to
restrain one spouse from molesting or harassing the other, or to enjoin
disposal of assets or in any of countless situations. Except in certain
emergency situations, (see section on Domestic Violence Act) the lawyers
give notice to the other parties attorney, file a motion, and in most cases
appear in court on a future date. Often there is a delay after filing the
motion for the entry of the temporary orders before an Order is entered. Due
to court congestion, delaying tactics by the other party or other reasons.
SETTLEMENT
In the weeks, months, or years following the filing of the Petition for
Dissolution (and prior to any actual trial) the attorneys for the parties
may and should discuss the possibilities of settlement. Letters are.
written, information obtained or exchanged, either the easy way, (by
agreement) or the “hard (and expensive) way, through court sanctioned
"discovery" procedures including- subpoena of records, depositions,
interrogatories or private investigation. In appropriate cases the lawyers
might arrange a meeting of the parties and their attorneys for the purpose
of a full and frank four-way discussion of all the factors involved in a
settlement.
80 to 90% of all divorce cases are settled. The real issue is whether the
road to settlement is easy, or traumatic and expensive. Countless factors
will play a role in settlement which are very difficult to predict or
control. After the case has been filed by one of the parties, they are free
to enter into an agreement if they are able, that will settle between them
their rights as to maintenance, child custody, support, and division of
property.
If the questions as to maintenance, child custody and support, and division
of property can be settled and compromised by the parties and attorneys
working together, then a written agreement is usually prepared and signed by
the parties for submission to the court at a special type of trial called a
"Prove Up". The judge is not required to approve this settlement agreement,
but will always do so if its terms are reasonable. A lawyer should be able
to advise a client during the negotiations whether anything has been
proposed that is not likely to be approved by the court. In some instances,
the agreement may be oral where matters are extremely simple.
CONTESTED CASES
If a settlement is not reached by the parties, then eventually the case is
assigned for a contested hearing. A case is contested as long as any one of
the issues such as child custody, support, maintenance, property rights, or
even grounds remain unsettled.
No area of the law can be more frustrating and seem to serve justice so
poorly as family law. Emotions are strong and some issues, such as custody,
do not lend themselves to easy resolution. A truly contested case involves
preparation and research which is a wholly different process than a case
which is basically able to be settled given some conferences and compromise.
Ideally, it is the actions and attitude of the clients which settles cases,
with the lawyer being a helpful instrument. While either party in a matter
may appear to be, or in fact be, unreasonable, it is hoped that reason will
ultimately prevail, often after considerable expense. There are indeed
attorneys, particularly where the scent of dollars is strong or, by their
incompetence or offensive nature, do more than their share to cause
unnecessary dissension and unrealistic demands all of which can greatly
increase legal costs. These problems will be overcome in time but must be
anticipated. We can only promise to do our best to facilitate settlement if
at all possible, whenever possible.
A contested case is tried in two parts. First as to the question of
dissolution (grounds), and subsequently as to the issues of custody,
property settlement, support and maintenance. This is called "bifurcation".
Frequently, a case will be set for contested trial and settled on the
morning of the trial in the conference room adjoining the courtroom, or in
the judge's chambers with the judge participating. If not settled, the
contested trial will proceed with testimony as to the grounds for
dissolution. The court than decides the issue of Dissolution of Marriage and
if granted, proceeds to the hearing on the remaining issues. It is in these
areas that the real disputes exist, and certainly, with regard to custody,
where the trauma lies. Presumably, much preparation has preceded this
moment. There may be many witnesses, experts, and business evaluations. The
legal expense by this time may be astronomical.