Divorce, or the dissolution of a marriage, often entails a stressful mix of emotional upheaval, lifestyle changes, financial uncertainty, and disputes regarding the best interests of children. Whether the divorce is contentious or amicable, it is a process that involves a series of steps required by law, which culminate in a final dissolution judgment. At times, the legal process can be time consuming, stressful, emotional, and in some cases, very expensive. Hiring the right attorney from the beginning can go a long way toward mitigating the negative effects of the divorce process. At Kollias & Giese, P.C., we make sure our clients understand the process in advance, and we help them deal with difficult circumstances in the most effective and efficient manner possible.
Either spouse may seek a divorce by filing a petition for dissolution of marriage with the court. The person who files first is typically referred to as the petitioner or the plaintiff. The non-filing spouse is typically referred to as the respondent or the defendant. The responding party can also file a counter-petition for dissolution of marriage.
Prior to January 1, 2016, several “grounds” upon which a person could obtain a divorce existed, such as irreconcilable differences, mental or physical cruelty, addiction, infidelity, among others. However, now a person can request a divorce alleging only that irreconcilable differences have caused an irretrievable breakdown of the marriage and that reconciliation is not in the family’s best interests. If the parties have been living separate for a continuous period of at least six months before the entry of the final divorce judgment, there is an irrefutable presumption that the requirement of irreconcilable differences has been met, sufficient to allow the divorce to be finalized. These changes the focus away from having the parties blame one another for the divorce and allow them to proceed as amicably and quickly as possible to avoid as much disruption to their lives as possible.
After the filing of a petition for dissolution, the other spouse must be served (i.e., given proper, legal notice that the divorce case has been filed), and given an opportunity to respond to the petition. In Illinois, proper legal notice typically requires the sheriff or a process server to hand-deliver a copy of the summons and petition. If the other spouse does not respond within 30 days of being served, that spouse may be found in default, and the divorce may proceed in his or her absence. A spouse can waive his or her right to be served by filing an appearance, or retaining an attorney to do so on his or her behalf.
The next step in the divorce process is the exchange of financial information, known as discovery. Dependency on the complexity of the financial issues in the case, discovery can be extensive or limited in scope. However, in all cases, due diligence is required. Before any divorce is finalized, both spouses should be fully aware of one another’s income, expenses, assets, and debts.
During the divorce process, it may become necessary to seek temporary relief. The term “temporary” simply means “while the divorce case is pending.” For example, it may be necessary to address issues regarding the allocation of parental responsibilities and parenting time, payment of household bills, child support, or maintenance on a temporary basis. A good attorney will attempt to address temporary issues by negotiating an agreement with the other party. If no agreement can be reached on these issues, a party may have no choice but to file a petition and ask the judge to decide issues pertaining to temporary relief.
If a petition for temporary relief is financial in nature, a party will be required to submit an affidavit and supporting documentation, including income tax returns, pay stubs, and banking statements. If a party intentionally or recklessly files an inaccurate or misleading financial affidavit, the court will impose penalties against that party, including attorney fees for the other party. Once the petition is filed, if there is still no agreement, a hearing will take place in court, which is summary in nature. This means that instead of a full evidentiary hearing, the court will only conduct a brief hearing to determine support.
All temporary orders are eventually replaced by permanent orders, contained in a judgment of dissolution of marriage (sometimes referred to as a “divorce decree”) when the case is finalized. The vast majority of divorce cases are resolved amicably with the assistance and input of counsel. In some situations, negotiation is not possible. An effective attorney will recognize when settlement through negotiation is possible, and when aggressive representation is required.
During the divorce process both parties will make financial disclosures to the other party and either party has the right to seek additional financial information from the other party through the discovery process. Property is either marital property or non-marital property. There is a presumption that all property, including debts, acquired by either person during the marriage is marital in nature and subject to an equitable division. Non-marital property is one person’s property that is acquired by gift or an inheritance, or property acquired in exchange for such property; property acquired prior to the marriage; or property excluded by premarital or postnuptial agreement; among other things.
Property that was acquired prior to the marriage that would otherwise be non-marital property cannot be deemed to be marital property solely because the property was acquired in contemplation of the marriage. A court will make specific factual findings as to its classification of assets as marital or non-marital property, values, and other factual findings supporting its property award.
If you are considering filing for divorce, or if your spouse has filed family court petitions to which you must respond, please contact the experienced, discreet attorneys at Kollias & Giese, P.C. for a free consultation. We make sure that our clients understand the process, and that we understand their goals. We apply our experience, legal knowledge, and advocacy skills to reach a fair result for all of our clients, whether by negotiation on litigation. Our top priority is help our clients minimize the time, expense, and stress inherent in the divorce process.