The first step in any divorce case is to draft and file a Petition for Dissolution of Marriage, and then serve the other party, called the “respondent,” with the petition. The timeline from that point to the divorce decree being finalized depends on the specifics of each individual case. Although most of our divorce matters are in Cook County, Illinois, many of the general steps are the same anywhere in the state. Here are the three main tracks that divorce proceedings can follow, once a petition for divorce is filed, from the simplest to the most complex.
In the simplest divorce cases, there are no large assets and no children.
Cases without houses, retirement accounts, or children are the fastest to finish. Even cases with smaller assets, such as a car, or minor liabilities that need to be considered, such as small debts can be resolved quickly, averaging around three months.
Further, the respondent can waive their right to be served, if they choose, which can save time and money. However, we always recommend paying for and taking the time for serving the respondent anyway. In some cases, the respondent takes more time to return their wavier of service and summons than it would have taken if we had just served the respondent the typical way in the first place. Generally, the only time I use the waiver of service and summons is when the opposing party lives in another country.
Even in a simple divorce, both sides are required to disclose their financial circumstances – that is, your income, expenses, assets, and debts, using a form called a Financial Affidavit – unless both of you agree to waive the requirement.
You then go on to draft the Marital Settlement Agreement and the Judgment for Dissolution. These documents must be approved and signed by both parties. You must also submit a document, called a certification, declaring that all matters pending between you have been settled and request that the case be heard as an uncontested matter. This tells the judge that you want to proceed with the agreed-upon terms and don’t want to take your case to trial.
Once this is filed, the court will give you a date to appear at a hearing. You will speak with the judge, and the judge or the attorneys will ask you several yes or no questions pertaining to your divorce agreement. This is primarily to ensure that the paperwork is in order, that the agreement does not appear coerced.
At this point, both parties have fulfilled all of their responsibilities and the judge will finalize your divorce. The attorneys have to submit two documents to the court:
- A transcript of the proceedings, so there’s a record of text of what happened during that hearing.
- The Certification for Dissolution, which the court sends to the Department of Vital Records, as a record that your marriage has been dissolved.
Cases involving larger assets are more complicated.
Cases with large assets tend to take longer than the simple cases because both parties need to make sure they know what the values of the assets are and both parties tend to argue over those values. Thus, the back and forth slows things down considerably. These cases can take 9 to 12 months, or longer if the other party is particularly obstinate. Examples of larger assets are a house, a retirement account, a small business, or perhaps some larger debts.
The financial side of these cases, like the simpler ones, starts with both sides filling out the Financial Affidavit, disclosing their income, expenses, assets, and debts. You must also provide documents that support the amounts you listed (such as your last two years of federal and state tax returns, most recent W2, and your last six months of checking and banking statements). Keep in mind that in filling out this form, you are making a sworn statement. If you’re found to have been untruthful, you may be held in contempt of court. This could involve a fine or, in some rare cases, jail time.
Time will be set aside to get a complete financial picture of the situation. This part of the proceedings is known as “discovery,” because it is when the two sides learn the details of each other’s financial situation. The process can involve sending and receiving lists of requested documents as well as asking or answering specific questions. This can be a time-consuming process, with a lot of back-and-forth, and a good deal of accounting work involved.
Once all the facts have been assembled, you will try to reach a settlement of the assets and other financial elements that is agreeable to both sides. This too can take several rounds of draft settlements and negotiation.
If no settlement has been agreed to after a period of time, the next step in this case would be to schedule a pretrial conference, to obtain the judge’s recommendation regarding suitable options moving forward. The attorney will come back to their client with the recommendations.
If an agreement is successfully reached based on the judge’s recommendation, then the rest of the process is the same as in a simple divorce: a Motion for an Uncontested Hearing is filed to finalize the agreements and divorce is finalized, as above.
If there is no agreement regarding the settlement, the case will go to trial. Trials are generally scheduled three or more months in advance and require additional documents to be exchanged between the parties, like exhibit and witness lists. Typically, the attorneys must conduct depositions, talk to expert witnesses, and prepare their clients. Cases that go to trial can ultimately take two years between filing and the final judgement.
When children are involved, there are other steps included in your divorce proceedings.
Not only are money matters at issue, which is stressful in itself, but difficult questions about parenting and family bonds come up, slowing down everything for all involved. To ensure that the children are taken care of, there are mandatory additional steps that must be followed. In many instances, the judge will not even hear non-child issues until there are at least temporary orders in place for visitation and support. Essentially, divorces with children turn into two separate cases but under the same case number: 1. Allocation of Parental Responsibilities and Parenting Time and 2. Dissolution of Marriage.
These cases can take between one and three years to resolve. Our firm, and judges too, try to push the case through as quickly as possible; but there are too many ancillary motions that when filed bring requisite minimum time allowed to deal with. For example, often both parties will send interrogatories and notices to produce to the opposing party. That party has 28 days to respond. Nearly always, the responses are incomplete. The sender must then send a letter to the opposing party saying, your responses are insufficient, you have another two weeks to complete it. If those two weeks go by without anything being sent in, then the sender must file a motion to compel. It will probably take two weeks for that motion to be presented to the judge. The judge will allow the other side their statutory minimum time to respond, another 28 days. Then, you must fit your hearing into the judge’s availability, which could be one or two months later. Finally, you can have a hearing about the motion and the judge may or may not order the opposing party to send you the evidence that you think is missing. Even if the judge agrees with you, he or she will order the opposing party to send that evidence in two or four weeks. All of that took almost six months and no substantive orders or progress on the case has been made!
If you and the other parent cannot work out how you want to handle bringing up the child after the divorce, the law provides steps to help you. This includes mediation to determine custody and visitation. There are effective mediators and mediators that are difficult to deal with. Depending on your circumstances, you may be able to reach a custody agreement through mediation, in which case you’ll be on the path to settlement.
If you are unable to cooperate with each other, co-parent, and be friendly when discussing the parenting of your children, it will quite literally cost you. It is important to be prepared for this if you are unwilling or unable to come to an agreement.
If mediation fails, the court will appoint a guardian ad litem (or GAL). This is another attorney, and the involvement of a third attorney can cause fees to skyrocket. The GAL will investigate the circumstances and write a report that each party’s attorneys can use to cross-examine at trial. The GAL will also write a recommendation, and that recommendation is followed by judges 90% of the time. Because of this, the judge’s selection of the GAL is possibly the most important part of any custody trial.
Just as in divorce cases where assets cannot be decided in a settlement, if you are not able to come to an agreement on custody and visitation, there will be a trial to make those decisions. These trials tend to be long and tumultuous. This is in part because many witnesses and forms of evidence are usually brought in. There may be the testimony of doctors, expert witnesses, teachers, and family members attesting to who is the best parent for the child to be with for the majority of the time.
These proceedings may last for two or three days and can get quite costly, especially if you’re paying extra witness fees.
After the custody trial, the judge will make a decision called an Allocation Judgment. This judgment dictates which parent or parents are responsible for decisions concerning “the big four”: education, extracurricular activities, religious upbringing, and medical needs.
After custody is determined, child support must be resolved. This tends to be a contentious part of divorce proceedings, because few people tend to want to pay child support.
Child support is determined separately from custody and visitation – that is, the amount of custody or visitation that one parent has does not generally affect the amount of child support that may be due. A person may find themselves wondering why they are ordered to pay child support when they are not able to see their kids. But it is important for parents to understand that they cannot use child support as evidence that they should have more decision-making responsibility or parenting time (or vice versa, that having the majority of parenting time means they should contribute less financially).
To sum up, an uncontested divorce with no large assets or children can be final in three months or less. The presence of large assets means there will be a period of “discover” to establish all the financial details, and likely rounds of negotiation regarding the settlement. Divorces involving children are the most complex and most painful, and require separate determinations as to parenting time and child support.
If you have questions about divorce, child custody, or child support, we can help.
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