Illinois divorce details
Uncontested VS Contested Divorce in Illinois
While Contested divorce refers to a “traditional” divorce proceeding which assumes attorneys' disputes, time-consuming trials, and numerous court hearings, an uncontested divorce can really save your time and money. Surely, you must think in advance about whether you are a good candidate for an uncontested divorce, or you should contest your case.
- Contested divorce.
You should contest your case if you have a complicated relationship with your spouse (for example, he/she does not agree to get a divorce, resorting to manipulation, blackmail etc.); if you cannot reach an agreement about child custody & support; if there are some huge misunderstanding about the property and neither you no your spouse is ready to compromise.
- Uncontested divorce.
You can file for an uncontested divorce if your intention to terminate the marriage is mutual (or, at least, your spouse is indifferent); you can resolve some property or child-related issues without a court (or you just have not much property, assets & debts, and you have not minor children); there are no mutual accusations and claims.
Uncontested Divorce in Illinois
An uncontested divorce means that the spouses can reach an agreement about all the most important aspects of the divorce terms affecting their future life. They still may hire an attorney or attend several mediation sessions if they want any help, but they have not to attend lots of court hearings, there are no judicial interviews of the children, and the whole process takes much less time anyway.
However, in Illinois, an Uncontested divorce can be even easier than it seems. You can file for a so-called Simplified divorce and finalize it in one day, if you meet the certain requirements: you have no children and real estate; both you and your spouse waive the spousal support; the value of your marital property is less than $10,000, and your common income is less than $35,000; and, as in any uncontested case, you must make a written agreement to divide property.
Grounds for Divorce in Illinois
Illinois is a mixed-state, for it recognizes both Fault and No-Fault grounds for divorce. It means that you may, but you have not to point any Fault, when filing for divorce.
Fault grounds refer to a contested divorce, so they are much less popular nowadays, but still can be reasonable and relevant in some situations. But you should be able to prove the spouse’s misconduct before the court.
Fault grounds for divorce in IL:
- abandonment for a period of at least a year;
- alcohol abuse or drug addiction for 2 years;
- attempting to take the other spouse’s life;
- extreme physical or mental cruelty;
- a felony conviction;
- infecting the other spouse with a sexually transmitted disease.
No-fault grounds for divorce in IL:
- living separate & and apart for 2 years;
- irreconcilable differences have caused the irretrievable breakdown of the marriage (conflict of interest, mutual desire to terminate the marriage).
No-fault grounds are more common as they don’t need to be proved.
Illinois Residency Requirements to File for Divorce
To get a divorce in Illinois one or both spouses must be residents of the state for 90 days or more before filing the Petition and start the divorce case.
Illinois law defines a “residence” as a person’s “domicile.” This term means that the place where you live currently, is your home, and you have no plans to leave it in the near future. If someone resides in two states at the same time (or, for example regularly travels for work), the main residence is the state, where he/she spends at least 50% of the time.
How to File for an Uncontested Divorce in Illinois?
In Illinois, the filing procedure may vary by county and your particular conditions, but every uncontested case includes the following steps to be taken:
- File a Petition for dissolution of marriage in the County Court. Complete and sign the forms with the court clerk.
- Serve your spouse with the copies of Petition and Summons.
- Wait for the response. If your spouse agrees to the divorce, then you should jointly write your Marital Settlement Agreement and Parenting Agreement (if there is a need). Notice, that you can make these agreements in advance, even before filing a petition, if you want to. It can save your time.
- Get a hearing date and attend the final hearing. The final hearing of uncontested divorce is a formality, this is quite short and calm event, so you shouldn't bother.
If you decided to file for a joint Simplified divorce and you meet all the mandatory requirements, you should go to the court and complete the forms together. In addition to a Petition for Simplified Dissolution of Marriage and a Property Settlement Agreement, you have to fill out and sign an Affidavit in Support of Joint Petition for Simplified Dissolution of Marriage. The court hearing may be appointed the same day. Both of you must attend it.
Do-It-Yourself Divorce in Illinois
A no-fault uncontested divorce, and, for sure, a simplified divorce can be easily obtained without an attorney. All you have to do is just to take the mentioned above steps carefully and responsibly.
Don’t try to arrange a DIY divorce if you are not sure you can cope with a Settlement Agreement or children-related issues on your own. These aspects can influence your future life a lot, so don’t rush and think an advance. Also, you should know that your ex is honest with you, and your desire to make a convenient and fair agreement is mutual.
If you are generally agreed but there are still some obstacles or misunderstandings you can always try mediation or get an online advice from a qualified lawyer.
How Much Does an Uncontested Divorce Cost?
An initial cost of a divorce case is equal to filing fee cost, which is typically between $150 and $300 in different Illinois counties. Additional expenses may include sheriff service ($75), state-required FOCUS on Children online seminar ($25), mediation ($150 - $300 per hour). An average rate of attorneys’ fees is $260 per hour in Illinois.
How Long Does it Take to Get Divorced in Illinois?
The fastest way to terminate the marriage is to file for a Simplified dissolution of the marriage. It can be obtained in a 1 day or just in few days. If you don’t meet the needed requirements and file for an Uncontested divorce it can take several weeks (if your spouse signs an entry of appearance) from the time you’ve filed a Petition.
Illinois Supreme Court insists that the Contested cases with children involved shouldn't take more than 18 months, but, speaking of any Contested divorce, it often takes more than a year.
Papers & Documents You Need to Get a Divorce in Illinois
According to your personal situation you may need some additional forms and papers you can always find on the County Court website or download with our service, but here is the list of basic and necessary forms for any uncontested divorce in Illinois.
- Petition for Dissolution of Marriage (with / without children).
The Petition begins your divorce case asking the court about the divorce.
- Certificate of Dissolution of Marriage.
Asks some information about you and your spouse for statistical purposes of Illinois Department of Public Health.
This form is intended to notice your spouse that you are seeking for divorce.
- Entry of Appearance.
This form has to be filled out by your spouse to tell the court that they do not need to receive a Summons, so the case is uncontested.
- Judgment of Dissolution of Marriage (Divorce No Children / Divorce With Children).
This form contains the judge’s decision about your divorce case. If divorce is granted the Judgment also contains the terms of property division and determine whether spousal support will be paid.
- Parenting Plan.
The form which is needed if you have minor children. Contains information about both parents and the child/children, governs the terms of custody & visitation rights.
How to Serve Your Spouse in Illinois
“Serving” your spouse means to notify him or her about your intention to get a divorce by delivering the copies of the Petition and Summons. You are not allowed to hand the paperwork face-to-face.
In Illinois, there a three ways to serve the spouse with the divorce documents. You can do it with the help of a private process server or using a sheriff’s service. In the last resort, you can request a service by publication, if you cannot locate your spouse (this procedure is quite rare and can cost a few hundred dollars).
Most counties welcome the Sheriff's service as the most appropriate way to serve the respondent because once the paperwork is delivered the sheriff gives you a proof of service document, which you must file with the court.
Online Divorce in Illinois
In Illinois, it is not necessary for you to complete a paperwork in the court. You can bring already completed forms to the clerk office in the local court. It is quite convenient because you can also get all the forms online, and, therefore, to fill them out at home.
Though your divorce still cannot be ordered online and without attending the court hearing, you can prepare for divorce and save your precious time using our online divorce service.
The fact is that we customize all the needed forms and documents according to your particular county and all the aspects of the case. You have not to learn your state's law in order not to miss out some important detail, because we can provide your individual paperwork packet in a short time and review it after it is completed.
Rules for Child Support and Visitation in Illinois
Child Support is a regular payment, which amount is entered by the court. The support is paid from the one divorced parent to the other, who has a majority of parenting time and responsibilities.
In Illinois, Child Support is determined under the new Illinois child support law (2017). Now, child support is calculated considering both spouses’ gross income by rather complicated formula. The result of a calculation is an amount of the child support obligation, which must be paid by the paying parent to the non-paying parent for childcare expenses.
In deciding child custody the court acts on the principle of ensuring the best interests of the child. This means that the court does not consider, for example, the custodial parent’s gender, but it takes into account parents’ and child’s wishes, relationship in the family, child’s interest of a particular school and affection for a familiar surrounding, and whether each parent is ready to welcome a close contact of a child with the other parent.
We can distinguish different types of a custody depending on whether it is sole or joint custody, and whether it is related to the physical presence of the parent in the child’s life or to some decision-making power. Let's figure it out:
- Sole custody.
This type of custody implies that the child has the only one custodial parent, who lives with the child and makes all important decisions about different aspects of the child’s life alone. Sole custody can be granted when the other parent’s participation in the upbringing process may be defined as unwelcome, harmful or even dangerous. So, when the sole custody is entered, it is, typically, both physical and legal.
- Joint custody.
Joint custody may be both physical or legal.
- Physical custody. If parents live in the same city they can share their parenting time so that the child could successfully communicate with both parents, no matter, with whom of them does he/she reside in fact. If parents cannot or don’t want to divide their parenting time 50/50, there is, typically, one custodial parent and the other parent is non-custodial. Non-custodial parent spends time with the child, using his or her visitation rights.
- Legal custody. When the legal custody is joint it means that both parents have their rights to make some important decisions about the child’s education, healthcare, travels, and about what is the best upbringing philosophy. In that case, a custodial parent should consult the other parent before making some significant changes in the life of the child.
Rules for Spousal Support in Illinois
Spousal support, also called Maintenance or Alimony, is the payment that may be awarded to any spouse, without considering their "Fault ground for divorce" if any. An alimony is awarded by the court due to the numerous conditions like both spouses’ income, length of marriage, physical condition of each spouse and ability to support themselves, etc.
The spousal support may be temporary, long-term and even permanent depending on your circumstances and purposes. Therefore, the alimony can be revised if your circumstances have changed.
Since the beginning of 2019, some changes in the Illinois rules for a spousal support are expected. If today the person who pays alimony should deduct the payments on his or her tax returns (and higher payments mean reducing of their taxable income, and, in turn, more support for a non-paying ex-spouse), then since January, 2019, the paying spouses will be required to pay tax on any payments made to their exes.
Division of Property in Illinois
Illinois belongs to “equitable division” states, so there is no need to divide all the marital property (and the debt as well) 50/50. In Illinois, the common marital property must be divided into just and fair proportions according to the judge’s conclusion, and the separate property is not subject to division at all.
So, to know how your property can be divided during the Illinois divorce you first should determine which part of your property is separate and which is not.
- All you had prior to the marriage;
- All that you acquired in exchange for property that you had prior the marriage;
- Your personal gifts or inheritances;
- Something excluded from the marital estate by the valid agreement with your spouse;
- The increase in value of any of the separate property during the marriage.
Marital property - almost all the property acquired during the married life, no matter under which name the property is held. This also applies to common property such as joint tenancy, tenancy by the entirety, or community property and so on.
The court does not take into account any fault or misconduct that caused a divorce, while deciding the proportions of the property division. Among the factors that affect how exactly the property will be divided are the contribution of each party to the increase or decrease in the value of the property, including the contribution of a spouse as a homemaker, length of the marriage, child-related arrangements and any agreements between the spouses, the income, health and employability of each spouse and the great number of other important aspects.
Division of Debt in Illinois
In Illinois, debts are considered to be the part of marital property under the same conditions like a real property or assets are.
So, the separate debts are kept by the original “owners” just like a separate property. And you'd better pay off all the possible debts, that can be considered as marital property before filing for divorce. The result of an equitable division of the debt often is less than favorable for one of the spouses, and also, it is may be rather difficult to determine who is responsible for credit cards' and consumer purchases debts.
In some cases the judge even orders the spouses to liquidate assets in order to sever financial ties.
Divorce Mediation in Illinois
Divorce Mediation is a modern and quite popular way for spouses to resolve the most complicated issues of their divorce case jointly. During the mediation session the spouses' dispute is guided by the qualified mediator, who appears as a neutral third person, like the “buffer” between two parties. The mediator can help to make a Settlement Agreement for an uncontested divorce or to prepare for property division. And it is extremely important for spouses to negotiate in person and learn how to compromise in some terms if they are going to order a joint legal custody. In that case, an ability to negotiate will be useful as well for a long time after a divorce.
Illinois courts encourage the spouses to attend mediation sessions, as it can really simplify the whole divorce case. Mediation facilitates the settlement of divorce terms and, at the same time, affects as a therapy. Mediation is a non-public process, and the spouses are not allowed to cite anything said during the mediation during the trial.
How to Divorce a Missing Spouse in Illinois
Once you’ve served your spouse with a divorce paperwork, he/she has 30 days to file the Appearance and the Answer forms, so that the divorce proceeding can move forward. But sometimes it happens that the filing spouse cannot even locate his/her ex, and has no idea how to deliver the Petition.
Illinois "no-fault grounds" imply that you mustn’t remain married if you don’t want to, and you can get a divorce without participating of your spouse if any other options are unavailable.
If you cannot find your spouse you can rely on “Service by publication”. This is the last chance to notify the spouse about the divorce terms before his/her rights will be changed, by the publication in a local newspaper (preferably the one that can likely be read by your spouse).
But you cannot get a Divorce by Publication whenever you want. You must really prove the court that you did your best to find a missing spouse. So, you must complete and submit an Affidavit of Diligent Search to the court. This form should contain a description of all your diligent attempts to locate the spouse. Only after a certain number of publications, the divorce can be granted under your terms.
Default Divorce in Illinois
Divorce by publication is an example of a default divorce because your case moves forward and finalizes without the signature and any answer of your spouse. But if you know where your spouse resides, but he/she still doesn’t respond to the Petition within 30 days, the motion of default also can be filed.
To file for a default divorce you should file the following forms: the certificate of dissolution, motion for default, and notice of hearing. Then, you must pay the court fees and wait until the court appoints a date of your default divorce. The final copies of court-stamped papers must be sent to your spouse (or, at least, to his last known address).
Annulment of the Marriage in Illinois
Though Illinois doesn’t provide a court action that would be called “an annulment”, in rare cases a marriage can be declared as invalid and be annulled as if it never really existed. Illinois definition for this action is "judgment of invalidity", and it is almost the same as the regular civil annulment.
Among Illinois grounds for request the judgment of invalidity are:
- consent to marriage was obtained by force, fraud, or duress;
- mental incapacity or drug/alcohol influence at the time the marriage was registered;
- the fact of impotence, that was hidden before the marriage;
- underage marriage without parents’ consent (under 18).
Legal Separation in Illinois
A Legal Separation sounds similar to Divorce, but there are some significant differences between these concepts. Divorce ends the marriage, and people are allowed to remarry after the divorce is granted. Officially you remain married and are not able to marry others.
Legal separation means that you cannot live under the same roof anymore, but for some reasons are not ready for divorce. Instead of just living separate, under the Legal Separation, you can allocate your responsibilities, parenting time and child support & custody according to the court decision. The marital property is not divided automatically in case of legal separation, but you can ask the court to decide this issue either.
Same-Sex Divorce in Illinois
In Illinois, the same-sex marriage is legal since 2014. Therefore, the same-sex divorce is also legal, as the flip side of the coin.
Generally, during the divorce process, homosexual couples have should follow the same rules as heterosexuals now. However, same-gender divorce cases have their specificity. For example, a lot of couples could not marry for a major time of their actual relationship before the same-sex marriage was recognized. Now, they officially have a lot of separate property (acquired prior to marriage), and they have not almost any marital property. Division of property or spousal support issues are typically complicated in such cases.
Children-related divorce terms also had their nuances up to 2016, but the new Illinois Parentage Act finally recognized same-sex parents. Also, it recognizes as parents those same-gender couples who never been married so now are splitting up instead of divorcing. This definition of a “parent’ is so important, as you can not be a custodian if you are not legally determined as a parent.
Military Divorce in Illinois
A Military divorce in Illinois is different from a civil just in some nuances. First, the residency requirements for the military divorce imply not only that at least one spouse must reside in Illinois for 90 days, but also that the military member spouse can be stationed there for the same period.
Second, Illinois military members are protected from the default motion by the state and federal laws. So, the Soldiers and Sailors Civil Relief Act (SSCRA) allows a court to postpone a divorce proceeding for the entire time a service member is on active duty + 60 days after the duty ends. According to the law, every person has a chance and a guaranteed right to respond to the court action.
How to Divorce a Spouse in Jail in Illinois
In Illinois, there are some fault grounds which can be related to the spouse’s incarceration - from abusing, physical and mental cruelty to a felony conviction.
But if you want to get a divorce based on no-fault grounds, the rules of filing a Petition and serving the spouse are the same as for any case.
The filing spouse completes a Petition for divorce and submits it to the court clerk. The copy of the Petition must be delivered to the inmate. The authorities of the jail where the spouse is being held can hand the papers to the inmate spouse on the petitioner’s behalf. The incarcerated spouse has the same 30 days to submit the response, then the final hearing can be legally held without him/her participate.
And if you want to contest you divorce case, the incarcerated spouse must be presented by an attorney. It is prohibited for him/her to attend the divorce hearing.
Illinois Divorce Filing Fee
A filing fee is an initial payment for the court services, which is charged by a court clerk at the time you are filing a Petition for divorce. It’s better to pay by cash or certified check.
In Illinois, the filing fee amount varies by county. It is, usually, in a range between $150 and $300.
An additional $75 fee may be charged to serve your spouse with the sheriff service.
Can a Filing fee Be Waived?
Yes, in Illinois, a filing fee can be waived. If you really cannot afford to pay the fee you must ask a clerk for a "Fee Waiver" form. Completing this form you should provide a full information about your income. If it will be confirmed that your income is below the poverty level then you will be relieved from the fee.
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