Choosing to end a marriage can be extremely difficult. When the parties have children, filing for divorce can be even more difficult knowing that getting divorced will have a large impact on your children. Further, you may have serious concerns about what will happen to your rights as a parent in the divorce process with respect to issues such as custody and parenting time. It’s understandable to start by learning more about divorce and exploring options like legal separation, counseling or mediation. But if you have concluded that your marriage cannot go on and you cannot or do not want to live with your spouse, then divorce is an option.
Even before you have made a final decision on ending your marriage, you should seek guidance from an experienced divorce attorney. Your lawyer will provide you advice as to the legal process, your rights as a parent, develop a strategy for your case and be your advocate through the entire divorce process. It is important to find a local divorce attorney who is a good fit and one with experience with respect to the specific issues in your case. For example, if you expect to seek or pay spousal support, or you and your former spouse own a business together, then you’ll need an attorney who is familiar with these matters.
A divorce proceeding officially begins when one spouse files a Petition for Dissolution of Marriage. Your spouse will then be served with papers notifying them of the divorce. However, the informal steps, like preparation and gathering of documents, often begin well before the Petition for Dissolution of Marriage is filed. For some couples who have limited assets or who agree on most issues, it may be possible to resolve the financial issues surrounding their divorce without going to court. Mediation may also be an option for some couples. An experienced domestic relations lawyer can help you better understand your rights and legal options, identify your goals and priorities, and explain the types of information you will need to make informed decisions.
Obtaining access to documents and information regarding the other spouse’s finances can be a challenge to negotiating your divorce settlement before filing a Petition for Dissolution of Marriage, since your spouse cannot be compelled to disclose this information before the divorce case is started. For spouses who are aware of all or most of each other’s finances, or for couples with limited assets, detailed financial disclosures may not be necessary. The type of financial information needed will vary from case to case, but it is crucial to have the right information needed to protect your interests and your future.
In many cases, spouses with children are able to agree on custody issues and a parenting plan. Custody refers to decision-making rights with respect to the children on issues such as education, religion, medical issues, and extracurricular activities. A parenting plan typically refers to which parent has the children and when. Most custody and parenting time issues are resolved by an agreement between the parties. Sometimes the parents can reach an agreement on these issues before even filing for divorce. In most cases, the agreement is reached during the divorce proceeding.
Because Illinois is considered a “no-fault” state, one partner does not have to prove that any misconduct occurred in order to dissolve the marriage, and such misconduct will not impact the distribution of assets or support. That being said, the dissipation of marital assets can be taken into account when dividing assets and debts. If a spouse spent substantial amounts of money on dinners and trips while having an affair, for example, the court might determine that the spouse is responsible for repaying those assets to the marital estate.
Certain marital issues can have an impact on custody and parenting time. Conduct such as physical or sexual abuse, drug or alcohol problem, or neglect of the children can have a significant impact on what a custody and parenting plan would look like.
Before filing a Petition for Dissolution of Marriage, it may be helpful to consider:
Finding answers to these questions on your own can be incredibly challenging, but a skilled domestic relations attorney can assess your situation and provide guidance.
All divorcing couples will be required to submit a financial disclosure form, which lists information including:
This information will be the basis for an initial financial analysis. In many marriages, this information is enough to move forward and negotiate a settlement. But if one or both spouses have significant assets, own a business, or believe that dissipation of assets has occurred, then more information may be required. And in some cases, you may not believe what your spouse reports on the disclosure form.
If the records submitted with the financial disclosure are not enough to provide a clear picture of each spouse’s finances, you will need to proceed with discovery, a process by which your attorney takes steps to uncover this information and bring it into the court record. The types of information that can be uncovered in this way include bank records, tax documents, credit card statements, business records, and more.
These methods are not appropriate or necessary in every divorce, but they can force your spouse to turn over important records if necessary. You will need to discuss carefully with your attorney how to pursue your divorce settlement goals in the most efficient way.
In a divorce proceeding, if the parents do not come into court with a custody agreement and parenting plan, the court will send the parents to mediation. This is required in practically all divorces involving children. A court may grant an exemption to the mediation requirement if domestic violence or sexual abuse has occurred. The court-ordered mediation oftentimes results in a custody agreement or parenting plan, and in many cases will significantly narrow the parties’ disagreements.
If mediation fails, the court will oftentimes appoint a Guardian Ad Litem or a Child Representative, who will act on the children’s behalf in the divorce action. In some cases where significant issues concerning custody exist, the court may order a custody evaluation by a psychologist, which is a lengthy and expensive process. In the large majority of cases, resolving custody and parenting time issues through negotiation is a much better option than having a custody evaluation or a custody trial.
When parents cannot agree on a custody and/or parenting time agreement, the court will, in most cases, try to facilitate a settlement during a case-management conference. The court will typically instruct the parties to identify the issues on which they disagree and to provide a detailed statement of their position on each disputed issue. There is no requirement for the parties to reach an agreement in mediation or to accept the court’s recommendations.
Once you’ve gathered all the relevant information and each party has developed their settlement positions and strategy, your attorney will work with you and your spouse’s attorney to try and resolve any remaining disputes. The majority of all divorce proceedings end in negotiation, so it is important to prepare yourself by formulating a good negotiation strategy. And if the parties are not able to reach a settlement through negotiation, your attorney will prepare you for and guide you through a divorce trial if necessary.
The negotiation process will vary based on how far apart each side is in their expectations. Having a knowledgeable family law attorney by your side is important, as this person will advocate on your behalf. For example, if you or your children have faced physical or emotional abuse from your spouse, knowing that you don’t have to face this person alone during the negotiation process can provide much-needed support.
Whenever a divorce proceeding involves children, the court will have to address the issue of child support, which is the financial contribution that one parent may be required to pay to the other to help support their children. The amount of child support one parent will pay is determined by looking at a number of factors, including, but not limited to, the number of children, the income of each parent and the amount of parenting time each parent has with the children. Your lawyer will help you fight for an amount of child support that is fair.
There are three ways that any divorce case can end:
While the marriage may be technically over, the legal work may not be entirely completed. When the parties have certain types of retirement assets, one of the parties may need to prepare a special type of order that instructs the pension plan or other type of retirement plan to divide the assets according to the divorce judgment. This process oftentimes involves working with the relevant spouse’s employer to get the proper type of form and information as to the procedures for getting the order approved by the employer.
In addition, if one spouse fails to follow the terms of the divorce decree, your lawyer can help you take legal action to have your judgment fully enforced.