Divorce and Family Law
Initiating a Dissolution of Marriage
Typically, by the time an individual initially meets with an attorney, one or both parties have made the decision to divorce. Therefore, you should be prepared to spend at least one hour with your prospective attorney and further be prepared to provide a great deal of personal information. This information most often will include: your name and address, your spouse’s name and address, birth dates of parents and children, social security numbers, drivers license numbers, comprehensive lists of assets, disclosure of wages, disclosure of all debts, and depending upon the grounds for dissolution—intimate details involving the relationship with your spouse and children.
Under Illinois law, parties may pursue a dissolution of marriage under the no fault provision of the Illinois Marriage and Dissolution Act. Under the no fault provision of the act, the parties need only allege that irreconcilable differences have caused an irretrievable breakdown of the marital relationship and that any further efforts at reconciliation would be futile and not in the best interests of the family. If irreconcilable differences are the basis for your dissolution of marriage, a two-year separation period is required. However, if the parties agree, the two-year separation period can be waived, thus reduced to six months.
Often, the issue of whether the parties cohabitate during the separation period arises. In Illinois, the parties may continue to cohabitate if they are in fact living separate and apart within the same dwelling. Living separate and apart within the same dwelling typically means separate bedrooms, a lack of sexual relations between the parties, and essentially living separate lives while sharing a residence.
In the event the parties are not willing to agree to irreconcilable differences, either party is free to allege specific grounds for dissolution. Specific grounds for dissolution in Illinois include adultery, abandonment for one year, mental or physical cruelty, natural impotence, simultaneous marriages, habitual drunkenness for two years, drug abuse for two years, attempted murder of spouse, conviction of a felony, or the transmission of a sexually transmitted disease to your spouse.
After you have decided under which grounds you wish to proceed, and after your attorney has obtained all the necessary information to commence your dissolution, various documents need to be prepared and filed with the Clerk of the Court located in the County in which you reside. The initial documents include a Petition for Dissolution of Marriage, a Domestic Relations Cover Sheet, and a Summons. After those documents are prepared, reviewed, and signed by you, they are filed with the County Clerk of Court along with the required filing fee. Those documents are then transmitted to the Sheriff’s Department whereby they are served upon your spouse. Your spouse then has, from the date he or she is served, thirty days within which to file an Appearance and Answer in the divorce proceeding. Typically, no temporary actions, such as the pursuit of visitation, custody, or support can be pursued within that thirty- day period unless an emergency exists.
Should the opposing spouse fail to appear and answer your Petition for Dissolution of Marriage, your attorney may file a motion seeking to enter default against the opposing party. If a default is entered, the court will set a prove-up date requiring you to appear in court and provide testimony and documentation designed to dissolve your marriage and resolve the issues of custody, visitation, support, and distribution of property and debts. If within the initial response time your opposing spouse files an Appearance and Answer in your divorce proceeding, the litigation process will then begin.