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SOME 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 indeed 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. The condition must have existed at the time of the marriage
and continue 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.
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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 a team of Judges or an individual trial
calendar. 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 trial
calendars, one judge hears all matters from start (Temporary Orders) to finish (contested
trial). The objective in all cases should be 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, 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, to restrain one spouse from molesting or harassing the other, to
enjoin disposal of assets, or in any other situations which require court intervention.
Except in certain emergencies (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 delay after filing the motion for the entry of the Orders
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 Award" (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.
Eighty to ninety percent 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 where issues are simple , parties cooperate and are able to settle 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 at times 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 incompetent, 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 day of trial. 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!
Good lawyering avoids unnecessary fighting -- but it also requires the ability to properly
manage the dispute when the going gets tough.
Illinois Family Law Articles
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