A Guide to Contested Divorce Cases in Cook County, Illinois
In Cook County, a divorce is contested if the parties need a judge to decide any of the issues in their divorce or to supervise discovery. If the parties do not agree on the any of following issues, the divorce will be considered contested:
- Grounds for divorce
- Child custody and visitation
- Child support
- Spousal support (called maintenance)
- Division of marital property and debts
Most contested divorces will ultimately end in a full settlement agreement, saving the time and expense of a trial. Still, contested divorces can ultimately cost thousands of dollars.
An Illinois divorce case starts when one of the parties files a “Petition for Dissolution of Marriage.” The petition briefly recites the facts of the marriage. For example, the parties’ names and address, marriage date, children’s names, the grounds for the divorce, short summaries of the marital property and debt, etc. The petition always ends with a list of what the petitioner (the party filing the petition) would like the court to award him or her.
Notice and Service
After the petition is filed, the other spouse (the respondent) must be given formal notice of the divorce filing. Usually, this means he or she is served with the petition and a summons by the county sheriff. Needless to say, the sheriff appearing at one’s home or work can be intrusive and embarrassing. In Cook County divorce cases there three alternative methods.
- If the respondent is cooperative, he or she can voluntarily file an appearance form at the court house, eliminating the need to be formally served;
- the petitioner can use a special process server instead of the sheriff. A special process server is a third-party adult who must appointed by the court;
- if the respondent’s whereabouts are unknown, he or she can “served by publication” by taking out a small ad in the legal newspaper.
Response and Appearance
Once the respondent has been served, he or she have to file an appearance and a response to the petition. The appearance lets the court know that the respondent is participating in the case, and the response lets the court know whether the respondent is admitting or denying the allegations of the petition. The response, just like the petition, ends with the list of what the respondent would like to be awarded by the court.
Exchange of Mandatory Disclosures
In Cook County, once the petition and response are filed, the parties have to exchange mandatory disclosures of their property, assets, debts, income and expenses. Each party is required to fill out a standard form Disclosure Statement and provide the other party with copies of recent tax returns and pay stubs. This mandatory disclosure should be completed within the first 30 days of the case. No party is allowed to issue any additional discovery requests until these mandatory disclosures have been provided.
Discovery is the process of acquiring information and documents from your spouse to support your side of the case. There are a few different types discovery requests. It is common request documents such as monthly statements from bank accounts and retirement accounts, or business records. Some discovery requests can also be sent to third parties. For example, a subpoena can be sent to your spouse’s employer or bank for the records directly.
While the case is pending, one of the parties usually files a motion for temporary child support, maintenance, and/or attorney’s fees. Temporary motions can be related to anything requiring resolution while the case is being prepared for trial, such as visitation or splitting money in a bank account.
If the parties have minor children, a final custody judgment needs to be entered within 18 months of the case being filed. Either both parents will have joint custody, or one of the parents will have sole custody. When the parties have joint custody, one of the parents is usually designated the residential parent.
If the parents cannot agree on custody, there are a number of steps that the court will order before it conducts a custody hearing. These steps include parenting classes, mandatory mediation, appointing an attorney for the children, and requiring the parents hire a custody evaluator. Each one of these steps is more expensive and time consuming than the last. The court will rarely talk to the children or ask the children for their preference.
Almost all contested divorces ultimately settle and only a few go to trial. To encourage a settlement, most judges conduct pretrial conferences. A pretrial is a short informal meeting with the judge. They usually last about 15 to 30 minutes. Both sides present a summary of the case, and the judge recommends how to settle it.
It is best to schedule a Pretrial when only a few specific issues are left to be resolved. This is usually after discovery is complete and after the parties have exchanged drafts of a Marital Settlement Agreement.
Settlement Agreement and Prove Up
If the parties come to a full settlement, one of their lawyers will draft a Marital Settlement Agreement and both parties will sign it. But you won’t be officially divorced until you appear in front of the judge for a “Prove Up.”
A prove up is a short court appearance, usually 5 to 10 minutes in length. The parties testify about the basic facts of the marriage, and present the settlement agreement to the judge. The judges reviews the agreement for completeness and fairness. If the judge approves, he or she signs it and the parties are officially divorced immediately.
If your case does not settle after pretrial, the judge will resolve all issues during a trial. Although divorce trials are typically less formal than criminal trials, the same basics format applies. Each party brings evidence and witnesses to testify and both parties have the opportunity to cross examine. A divorce trial can take up an entire afternoon, or even multiple days.