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. |
