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General Divorce Issues

To get answers to frequent questions about general divorce issues such as mediation, arbitration, filing for divorce, and legal separation, please select one of the links below:

• Are there methods for parties involved in a divorce proceeding to resolve their differences without a trial?
• How does mediation work in divorce and family law cases?
• What is collaborative law and how does it differ from mediation?
• What is arbitration and how frequently is it used in Illinois divorce cases?
• Does it matter who files first for divorce?
• Is it possible to avoid having a spouse formally served with the divorce document?
• After a party is served with process, how much time will they have after service to file hire an attorney or file an appearance?
• How long does it take in Illinois to get a divorce?
• What will my divorce cost?
• Will my spouse be required to pay my attorney's fees?
• How do I choose grounds for my divorce?
• What is a legal separation?
• Once a divorce is filed, is the other party required to vacate the marital residence?

Are there methods for parties involved in a divorce proceeding to resolve their differences without a trial?

Yes, there are methods of alternative dispute resolutions available to Illinois litigants. Alternative dispute resolutions are out-of-court settlement processes, which include: mediation, collaborative law and (to a lesser extent in Illinois arbitration.)

How does mediation work in Illinois divorce and family law cases?

In Illinois, a common form of alternative dispute resolution is mediation.

There are generally two forms of mediation in Illinois family law cases: independent mediation and court ordered mediation. In independent mediation the participants are not ordered by the court to go to mediation but do so voluntarily. In court ordered mediation, the court will often require mediation to take place before visitation and custody issues can be litigated. Many counties have programs for mediation in cases involving custody or visitation. However, effective July 1, 2006, each judicial circuit is required to establish a program to provide for mediation in such divorce and paternity cases involving the issues of custody or visitation.

Mediation is a process allowing a couple going through a dissolution of their marriage the opportunity to meet with an independent mediator who helps them to reach agreements.  These agreements can be as limited as one issue or as far-reaching as the complete divorce settlement.  Usually, people utilizing mediation also have their own divorce attorneys to consult with during the mediation process. Additionally, Illinois has adopted the Uniform Mediation Act.  It provides that an attorney may accompany a party to mediation and participate in mediation.

Parties to mediation should not sign a mediation agreement until after they have consulted with their lawyer and received their lawyer’s input.  

What is collaborative divorce and how does it differ from mediation?

Collaborative law allows the attorneys for both parties to assist them to resolve conflict using cooperative strategies rather than adversarial techniques and litigation. The parties and the lawyers sign an agreement which provides that if there is litigation, both parties' attorneys must withdraw from their representation.

The theory behind collaborative law is that there is no financial incentive for a lawyer to litigate. The downside is that if the process does not succeed there may be added costs of hiring new lawyers, etc. The collaborative divorce model is based on a team approach involving at a minimum two lawyers, a coach and the parties. The coach is a mental health professional with significant training in the nuances of divorce cases and thus is able to help a party focus upon cost-effective resolution of divorce. The other team members will often include an independent child specialist and a financial specialist. 

There are Fellows of the American Academy of Matrimonial Lawyers who are trained collaborative lawyers.

What is arbitration and how frequently is it used in Illinois divorce cases?

Several states, including North Carolina, have laws which specifically allow arbitration in family law cases. The American Academy of Matrimonial Lawyers adopted the Model Family Law Arbitration Act in 2005. Until Illinois enacts such an act, it is anticipated the arbitration will not be a widely used alternative for issues in Illinois divorce cases.

In states allowing arbitration of family law matters is a legally binding, non-judicial procedure held before a neutral third party who acts as a private judge. The judge is usually an attorney trained in divorce law. Throughout the entire process the parties are represented by counsel. Unlike mediation, neither party can unilaterally terminate the arbitration process and once they agree to commence the proceeding, they may be bound by the arbitrator's decision, just as if a judge acted in his or her official capacity. Under the Model Family Law Arbitration Act the parties can agree to arbitrate some or all of the issues involved in their divorce proceeding. As of the drafting of this Q&A, Illinois has not enacted any specific law enabling arbitration in family law cases.

Does it matter who files first for divorce?

Generally, it does not matter who files first. This is because statistically, more than 90% of divorce cases are settled rather than tried. However, some lawyers believe the party who files first can be of consequence if a case proceeds to trial since the Plaintiff will have the opportunity to present evidence first in the event of trial.

It is possible to avoid having a spouse formally served with the divorce documents?

Yes. Service of process can be avoided by your spouse or your spouse’s lawyer voluntarily filing an appearance. Often lawyers will contact one another to determine whether he or she will file an appearance to avoid the necessity of service of process. The decision of whether to take a cooperative approach and send a copy of the petition for dissolution of marriage to your spouse or their attorney is usually made based upon whether or not the spouse may try to avoid service if he or she is informed of the divorce filing prior to service.

After a party is served with process, how much time will they have after service to file hire an attorney or file an appearance?

In an Illinois divorce (dissolution of marriage) case, a person has thirty (30) days from the date that they are served with a summons to file an appearance and a response to the petition for dissolution of marriage.

How long does it take in Illinois to get a divorce?

Since each case is unique, there is generally no way to determine how long it will take to obtain a dissolution of your marriage. The only exception to this rule is that under the Supreme Court Rules child custody proceedings are supposed to be expedited and are supposed to be resolved within 18 months after service. If the 18 month time frame is not met the court is to make written findings as to the reason for the delay.

The most that can be generally stated as to issues which are involved in a case other than custody is that the more issues that are presented to the court the longer the case will generally take to complete. Cases which require frequent trips to court take longer to resolve since court dockets are crowded and therefore litigation is the most time consuming way to resolve an issue. The length of your divorce also depends on a number of things including the county in which the case is filed.

What will my divorce cost?

A capable divorce lawyer will not be able to predict how much a divorce case will cost to any reasonable degree of certainty.  Generally, the longer it takes to settle or try a case, the more it will cost the litigant because your attorney’s time, costs you money. The fees incurred in a divorce vary depending upon the facts and issues involved in the case. Domestic relations attorneys charge an hourly rate and will rarely work for a flat fee due to the uncertain nature of divorce litigation.  Most attorneys require a retainer fee to be paid as an advance against future fees and costs which will be incurred in your case. The amount of the retainer depends on the nature of the disputed issues.  Since an attorney bills for time spent on a case, the more time an attorney must devote to the case, the more it will cost. Factors affecting the total fee include the level of hostility between the parties, the experience of the attorneys, the complexity of the legal and factual issues and the general level of cooperation between the parties.

Will my spouse be required to pay my attorney's fees?

Not necessarily. Illinois law regarding payment of attorney’s fees is complex. There are two main types of awards: interim awards and contribution awards. Interim awards of attorney’s fees are those that are temporary awards – they are made while a case is still pending. Contribution awards are awards made at the conclusion of a case.

The Illinois law regarding attorney’s fees is often referred to as the “Leveling the Playing Field” statute although it is actually a series of provisions effecting the payment of attorney’s fees in divorce cases.  The goal of the statute is to allow each side in a divorce case to have equal access to legal representation. Additionally, if a court order is violated and the spouse seeking to enforce the order is forced to incur attorney's fees and costs, the court should order that the fees and costs be reimbursed to the enforcing party upon a finding that the individual violating the court order did so without compelling legal cause or justification.

How do I choose grounds for my divorce?

You must plead and prove grounds to obtain a divorce in the State of Illinois. There are a number of grounds which include, but are not limited to:

• Mental cruelty,
• Physical cruelty,
• Adultery,
• Extended drug or alcohol abuse,
• Desertion, and
• Irreconcilable differences.

Although grounds need to be plead, their significance is often more symbolic than actual since the grounds alleged will not impact the distribution of marital property, the award of maintenance nor, typically, affect the determination of custody of the children. Illinois divorce law regarding property and maintenance specifically states that the court shall determine these issues “without regard to marital misconduct.”The law also states with regarding custody that “the court shall not consider the conduct of a present or proposed custodian that does not affect his relationship with the child.”

Although the grounds of irreconcilable differences appear to be “no fault”, Illinois is not a pure no fault state. In a pure no fault state, there is not a waiting period for the parties to live separately before a divorce is entered.

In Illinois there is a two year waiting period for irreconcilable differences which must be proven. If one of the parties does not agree to waive the two year waiting period, the party seeking the divorce can only proceed to a divorce after the two year separation period expires.

Alternatively, in order to use these grounds, the parties must be separated for six (6) months and agree to proceed on these grounds by waiving the two year waiting period in writing. This separation period can take place while the parties live in the same residence if certain requirements are met.

In addition to the separation period, the party seeking a divorce under the grounds of irreconcilable differences must prove that:

1. Irreconcilable differences have caused the irretrievable breakdown of the marriage and
2. Efforts at reconciliation have failed and further attempts at reconciliation would be impracticable and not in the best interests of the family.

What is a legal separation?

A legal separation is a formal court proceeding whereby the court will grant a decree for legal separation.

Contrary to popular misunderstanding, it is not the period of time from the filing of the Petition for Dissolution of Marriage through the entry of the Judgment for Dissolution of Marriage. A separation proceeding can only be filed by a spouse who is living separate and apart from his or her spouse without fault. Legal separations in Illinois are infrequently used. However, they are occasionally filed by:

1. People attempting to protect their respective assets from the other's creditors because once the legal separation is granted, bills incurred by one spouse are not the liability of the other spouse,
2. People who can not get a divorce for religious reasons, and
3. People with an extended medical condition who would not be able to maintain or afford medical insurance on a long term basis after a divorce.

For further information on legal separation see our separate article on this topic. 

Once a divorce is filed, is the other party required to vacate the marital residence?

No. Generally, there are only two methods to forcibly remove a spouse from the marital residence:

1. A petition for exclusive possession of the residence brought pursuant to the Illinois Marriage and Dissolution of Marriage Act [Divorce Act]; or
2. The filing of a domestic violence proceeding (also known as petition for an order of protection).

The standards in the Illinios Dissolution of Marriage Act provide for awards of exclusive possession "only in cases where the physical or mental well being of either spouse or their children is jeopardized by occupancy of the marital residence by both spouses." 

For more information about the Illinois Chapter of AAML and the services we provide, please contact us at 1-312-263-7682 between 8 a.m. and 5 p.m. Central Standard Time (CST), fill out our contact form, or email us at info@aaml-illinois.org.