Process Of A Simple Divorce
Dissolution of Marriage (Divorce) is a process; and, the first question that I get from a potential client and to explain the process. This is a universal explanation (although I am an Illinois lawyer);
The first step in every case is to prepare and file a complaint (also called a Petition) for Dissolution of marriage. This is a recital of the basic facts, names and residence of the parties, date of marriage, children, grounds and the relief requested: such as Dissolution of the Marriage, Custody of children, Spousal Support (Maintenance, Alimony); division of marital property and allocation of non-marital property and any other number of specific things that you (the PETITIONER or PLAINTIFF) wants. The Complaint or Petition is then filed with the clerk of the court with a Summons (this is the document issued by the clerk and attached to the Complaint; and the Sheriff Will then personal serve the Summons & Complaint on the other party.
The Summons is live for 30 days during which the Sheriff or Process Server will attempt personal service of the complaint and summons on the other side of the case. If they are unable to serve the other side, then additional summons (called ALIAS SUMMONS) can be issued or if the other side is still not found, then there are some other procedures that can be implemented.
Once the other party has been served by the sheriff with a complaint and summons, he or she will have 30 days to either retain an attorney or without an attorney, file an appearance with the Clerk of the Court which subjected the other party (Respondent or Defendant) to the jurisdiction of the court. A response to the complaint should be then filed and at that point the case is at issue.
Illinois Courts generally a status date (to report to the Assigned Judge) on service of process, appearances, responses etc. about 90 days from the filing date. This is designed to get the case moving and inform the court if both parties have appeared individually or through their respective counsel.
The introduction of a child or domestic violence into the case will cause the court to move the case along the process in a more rapid manner.
For the sake of this discussion let’s assume, no children, no complicated facts or domestic violence.
The next stage of the case is discovery which is the process of determining what are the marital and non-marital assets, liabilities, and the income and expenses of the parties. This is done thru an obligation of the parties to fill out sworn income and expenses and asset & liability statements, the production of documents such as tax returns, real estate documents, bank statements and the like and finally issuing interrogatories to be answered in writing and under oath by each of the parties. Finally depositions may be taken by each side of the other, using a court reporter to record and transcribe the questions and answers. In a simple uncomplicated case, this is not a long process but in a more complex or difficult case where the parties are hiding assets etc., this can take months, even years to complete
After all pleadings are done and discovery is moving along, the parties may want the benefit of a conference with the Judge where the attorneys will explain their theory of the case, and the judge, based on these “theories” will advise the Court’s view of how the case should be settled. After a series of negotiations the case may be settled and a Marital Settlement Agreement (frequently referred to as an MSA) which spells out the settlement terms can be entered into (again we have assumed no children so that the issues of parenting, custody, visitation and alternate parenting time) do not have to be discussed.
If the case is settled and a MSA signed, the case is then sent to a hearing (called a “prove up”) which permits the parties under oath to give the Judge sufficient testimony to allow a dissolution of marriage and explain the MSA. If the Judge determines that the MSA is not unjust and unreasonable, the Judge will approve it and enter a Judgment for Dissolution of Marriage (Divorce Judgment) and the matter is over.
Again, I am only referring to a routine, non-contested, non-children, and set of facts to explain the basic process. Generally it’s never as simple as it should be. The simple question of when can I see my children or Why does he/she need to spend so much time with the children. Or the other great mystery, I don’t need you (the Judge) to tell me how much money I should give for the support of my children (wife) etc. It’s the same children that when you are married, “you would walk thru fire for”, and now you question how much it cost to feed, house, cloth, and educate him/her. Or the other great puzzle: I earned the money; all you did was being my wife, mother of my children, cleaning help, cook, and mistress. The courts have taken the view that both parties’ contributions to the marriage are the same (can you imagine that)... Well that’s enough of my world (contested & complex divorces).