For contested or uncontested dissolutions, the county Clerk’s Office (the county where you intend to file the divorce) can give you a prepared packet of forms. Fill out these forms and draft a Petition for Dissolution. You must file these forms in the county that you or your spouse live in. Once the paperwork is filed, you will receive a case number and judge (Calendar) assignment. You may set up a court date at the Motion Counter. At a later date, if there has been no activity on the case, you will receive a white postcard in the mail notifying you of a status court date.
Waiting Period/Residency Requirement
In Illinois, there is no waiting period to file a petition. The petition for divorce can be filed as long as one spouse resides in Illinois on the date of filing. The actual divorce, however, can only be granted if he or she has resided in Illinois for 90 days before judgment.
The possible fees you will have to pay are the filing fees and the service fees (i.e. serving your spouse). The fees for filing the divorce petition is different in each county. If a person cannot afford the filing fee, a fee waiver is possible. You will need to fill out and file the appropriate fee waiver forms.
Contested versus Uncontested Divorce
In an uncontested dissolution of marriage, both sides agree on the dissolution, division of marital property, allocation of parental responsibilities (i.e. child custody), parenting time (i.e. visitation), and visitation with non-parents, if any. A contested dissolution is where the parties disagree about one or more of these areas, which must then be negotiated or litigated.
Contested divorce is when the spouses do not agree on any issue. The relevant issues include:
- Whether to get a divorce
- Child custody (i.e. allocation of parental responsibility)
- Child support
- Property division
- Debt division
- Maintenance (i.e. spousal support and formerly known as alimony)
Contested divorces are often complicated and take longer than 18 months to resolve. However, remember that every case is different and a contested divorce can take less than 18 months to resolve, too.
Uncontested divorce is when both spouses agree on all of the above-mentioned issues. Uncontested divorce is much faster and easier than a contested divorce.
A divorce can also be uncontested if the spouse who received the petition for dissolution of marriage (i.e. the respondent) does not reply by filing an appearance and answer. The case will continue without the respondent and the court will decide on the issues based on what the other spouse (i.e. the petitioner) says. This is known as a default judgment. Before a default judgment can be entered for an uncontested divorce, there must be a prove-up hearing.
Finally, it is important to note that just because a divorce case is uncontested does not mean that the judge will approve the settlement agreement. The uncontested divorce settlement agreement must be approved by a judge before it goes into effect.
There are two kinds of divorces in Illinois. The usual is a formal dissolution. The shorter and easier way is called Joint Simplified Dissolution. You may get a joint simplified dissolution if you meet certain requirements. Those requirements are:
- The duration of the marriage/civil union does not exceed 8 years.
- Irreconcilable differences have caused the irretrievable breakdown of the marriage/civil union. Efforts at reconciliation have failed or future attempts at reconciliation would be impracticable and not in the best interests of the family.
- No children were born of the relationship of the parties or adopted by the parties during the marriage/civil union. Neither party is pregnant by the other party.
- Neither party is dependent on the other party for support or each party is willing to waive the right to maintenance. Each party understands that prior consultation with an attorney may have helped to determine eligibility for spousal support.
- Each party waives any right to maintenance.
- Neither party has any interest in real estate.
- Neither party has any retirement benefits unless the retirement benefits are exclusively held in individual retirement accounts and the combined value of the accounts is less than $10,000.
- The total fair market value of all marital/civil union property, after deducting all debts owed, is less than $50,000.
Legal separation is different from divorce because you are technically still legally married after the legal separation. In other words, a legal separation does not legally end a marriage. The parties to the legal separation cannot marry anyone else until they get a divorce. However, in a legal separation, the court can determine allocation of parental responsibilities (i.e. child custody), parenting time (i.e. visitation), child support, and maintenance (i.e. spousal support). The court cannot divide property in a legal separation unless agreed upon by the parties. In contrast to a divorce, where the court may decide all of those issues and also divide property.
To file for a legal separation in Illinois, you must fill out and file a petition for legal separation and a summons, serve a copy of the petition and summons on your spouse, and contact your local county clerk to request a hearing date.
In Illinois, an annulment is called a declaration of invalidity of marriage. This means that the marriage is ended because it never legally existed in the first place. In other words, the marriage becomes void, and it’s as if the parties were never married because of something that existed at the time of marriage. There are four reasons in Illinois that may void a marriage:
1. One spouse could not consent to be married because of mental disability, influence of drugs or alcohol, force/duress/fraud.
2. One spouse cannot have sexual intercourse. The other spouse must not have known this at the time of the marriage.
3. One spouse was under age 18 and did not have consent from a parent, guardian, or court.
4. The marriage was illegal. This means that either one of the parties was still married to someone else or the parties are closely related by blood or adoption.
An annulment is not necessarily easier than a divorce. The main reason to choose annulment over divorce is to avoid court ordered payments, such as spousal support.