Divorce Procedure From Start to Finish
updated 9 September 2019
by Wes Cowell
Divorces are granted only by judges in courts. You should work with an attorney. If you want to do-it-yourself, use our Quick Online Divorce service. Need advice? Call, leave your info, or schedule a consult.
The most common question I get goes like this: "I think I might be getting divorced and I just have a couple of questions about the process -- how does it all work?" My usual answer is "You start by hiring a lawyer. We do this stuff for a living; day-in, day-out. Follow your lawyer's advice and let your lawyer do the work."
I offer this chronology to help you understand the process and what you can do to help speed the conclusion of your case.
Timing: There are good times to get divorced and there are bad times to get divorced. Time your case for a good time, if you can. The best way to do this is to talk with your lawyer and coordinate the commencement of your case with the events you can best use to your advantage in settlement negotiations. An anticipated change in employment, vesting of retirement benefits, an exercise date for stock options, kids moving off to college, the expected completion of a degree, even a medical check-up can all be major factors in determining the time to start your case. By paying attention to this simple consideration you can deal a good hand for your lawyer to play – and that may make a world of difference.
Hire First, Talk Later: It's best to hire a lawyer to get a case on file before you wade into settlement discussions. There are four big reasons to hire a lawyer and file a case before starting settlement talks:
The whole time you're talking with your spouse, you'll have a lawyer for advice, guidance, and maybe even some authoritative intervention.
With any luck, your spouse will hire a lawyer, too. This doesn't make the case messy and difficult, it clarifies issues, refines positions, minimizes stress, and makes the case much, much more efficient and quick. If your spouse hires a lawyer, the talking is done between the lawyers.
You'll avoid the problem of "the waltzing goalposts." If you accede to a demand only to have your spouse increase the demand, the waltz has started and it will not stop without a judge. With a lawyer on retainer, however, those shenanigans never start.
Issues will be clarified right away. Lawyers know how to get stuff done: real estate is appraised, property valued, accounts frozen, expenditures itemized, budgets budgeted, futures planned, etc. etc. If your lawyer runs into a snag along the way, there's a judge in the courthouse who can unclog the jam and get things moving, again.
Initial Filing: Your case is started when your attorney files either a "Praecipe" or a "Petition" -- either will do. Commencing a case by Praecipe can be done in a few minutes and allows the Petitioner to lock in jurisdiction and venue. If you're not sure whether you want to file for divorce, but fear your spouse may file for divorce in a different county, we can file a Praecipe in the preferred county to secure the venue. If you reconcile, we can drop the case without ever filing a Petition.
Commencing a case by Praecipe: When a case is commenced by Praecipe, a Petition still must be filed within six months (unless the court grants an extension). 750 ILCS 5/411(a) Once your case is filed, you don’t have to tell your spouse and you don't have to serve the papers immediately. You can instruct your lawyer to wait before notifying your spouse. This period of silence can last only for 30 days. 750 ILCS 5/411(c). That lag, however, may be beneficial in some cases. Again, talk with your attorney to determine the best way to proceed in your situation.
The "Dear John" Letter: Unless your case involves violence or urgently must be presented to the court for some pressing financial or other reason, your attorney will probably notify your spouse by letter that a divorce case has been started. The "Dear John" letter is usually cordial and businesslike in tone – it merely says that you've hired an attorney, a case has been filed (and includes a copy of the papers) and that a negotiated settlement would be the best course for everyone. The letter suggests that your spouse consult an attorney and respond to the letter. The letter goes something like this:
By now you should understand that in your book of life, the chapter titled "Marriage" seems to be drawing to its conclusion and it may be time to turn the page and start a new chapter. Your spouse has hired me to represent her and her interests. She has explained that she wishes to resolve this case amicably and hopes you join her in that wish. Enclosed, you will find a copy of the paper I filed with the court. Please contact me to discuss a harmonious resolution to the business at hand. You may wish to review this letter and the enclosures with an attorney. I hope to hear from you or your attorney, soon.
Service of Process and The 30-, 60-, or 90- Day Delay: "Service of process" means officially notifying your spouse that a divorce case has started. We usually don't have to do this -- just sending a Dear John letter will usually get the other side to respond or hire an attorney. You may have the papers delivered by a sheriff's deputy or a private "process server" but the practice is not routine. If papers must be "served" on your spouse, figure it will take a week or two. Once the papers are served by a process server the clock starts ticking and your spouse has only 30 days to file papers with the court.
Just mailing the papers with the Dear John letter, or sending them via Fed Ex or e-mail or fax or whatever isn't good enough to start the clock. When you use the Dear John letter, the clock doesn't start ticking at all. For that reason, we give the Respondent a week or so to respond to the letter and, failing that, then we send out the process server.
A court date will be scheduled so that you and your attorney – and your spouse and his or her attorney – can talk with the judge about where things stand and what needs to be done. Sometimes at this first court-date, your spouse will show up without an attorney and explain that more time is needed to hire a lawyer. Judges hate to force anyone who wants a lawyer to go forward in court without representation. The case will almost certainly be continued for another thirty days. This may happen a few times and your case may be stalled by your spouse's inability (refusal or procrastination) to hire a lawyer. There's little you can do to prevent the delay – if the judge is willing to let the case lag, the case is going to lag.
The Dissolution Action Stay: A "stay" is a legal "freeze-things-the-way-they-are" rule. When a divorce case is filed, a stay is imposed automatically on the Petition when he/she files and on the Respondent once papers are properly served on him/her. The stay prohibits either party from:
(1) restraining both parties from physically abusing, harassing, intimidating, striking, or interfering with the personal liberty of the other party or the minor children of either party; and
(2) restraining both parties from concealing a minor child of either party from the other.
If you want any kind of an injunction beyond those two things, you're going to have to go to court and get an Emergency Order of Protection, an Emergency Temporary Restraining Order, a Preliminary Injunction, or an Injunction. What kinds of things would you want to cover? well, there's:
exclusive possession of the marital residence;
securing a car or other item;
freezing the bank accounts;
preventing removal of a child from Illinois;
keeping the child safe from certain individuals;
Finding the Right Judge: Believe it or not, a good lawyer can help get your case in front of a judge who may be good for you and not-so-good for your spouse. This can usually be done up until the time when the judge decides a "substantive issue."
It used to be that some attorneys would try to lock in a particular judge by starting a case with an Ex Parte Emergency Order of Protection. In an ex parte matter, only one side appears before the judge to present the issues; the other party doesn’t even know that the complaining spouse has gone to court until its all over. After the ex parte EOP had been entered, the attorney would then argue that the case had to stay in front of that particular judge -- you know, the one before whom the Respondent had been tarred and feathered -- because "substantive issues" had been presented in the EOP. That practice got a lot of mileage until the law was changed giving the Respondent the right to change judges even after an ex parte EOP had been heard and ruled on -- so long as the request is "timely presented." Scroggins v. Scroggins, 327 Ill.App.3d 333, 762 N.E.2d 1195 (4th Dist., 2002).
Temporary Relief: While your case is going on, the bills still must be paid, the kids must be taken care of, and all the other day-to-day things that make up your life still happen. The attorneys usually try to work out an agreement to make sure everything gets taken care of without resorting to court. Sometimes, however, temporary issues must be resolved by the court because the newly-separated couple is living beyond their means, the separation has imposed new financial burdens that their resources cannot accommodate, or the separation has generated animosity such that the parties cannot resolve the issues themselves. Absent an agreement resolving temporary finances, the parties end up before the judge. Family court judges resolve temporary relief disputes every day.
The Parenting Plan: Illinois requires divorcing parents to submit to the court a proposed parenting plan within 120 days of filing a divorce case. If the parents agree, they submit a single, agreed parenting plan. If they don't agree, they each submit a proposed parenting plan.
Parenting Mediation: If divorcing parents cannot agree on a single parenting plan, the court will require them to mediate their differences to see if they can come to an agreement. If an agreement is reached, the parenting plan is completed. If mediation fails, then the case starts moving down the track toward trial.
Discovery: Divorce cases, like every other type of lawsuit in the American system of justice, allows for a period of time in which both sides get to learn about the other side's case. This is called the "discovery phase" and it can take time. You may think that discovery in a divorce case is a useless waste of time. Think again. We encounter cases every day where a spouse has been hiding money for years, secretly stealing money out of a joint account, or siphoning off business profits to help their settlement position. These schemes take time to set up – sometimes several years – and they take time to uncover and sort out. All discovery is done under oath. When respondent's lie or mislead in discovery, they are punished by the court. The tools of discovery are:
Depositions: Depositions are formal, sit-down, question-and-answer sessions. The person answering the questions is sworn under oath. False answers are punishable by the court. Your attorney can depose just about anybody connected to your case: your spouse, his or her employer, lover, relatives, bankers, bartenders, etc. A court reporter is present at the deposition and records everything that is said. The court reporter's fees can be several hundred or even thousands of dollars depending on the length and complexity of the deposition – so be prepared.
Interrogatories: Interrogatories are written questions that must be answered in writing.
Subpoenas: Subpoenas are formal, written demands your attorney may send out to anyone connected with your case. Subpoenas are most commonly sent to banks, accountants, and credit card companies to obtain copies of financial documents. Subpoenas may, however, also be sent to hotels for registration records, employers for attendance records, and even to lovers for copies of love letters, gift receipts, etc.
Requests for Documents: A "Request for Documents" is a device used by attorneys to obtain documents and records from the other side. It may only be used between the parties – not on anyone else regardless of their connection with your case.
Requests to Admit: A "Request to Admit" is a list of "facts" that your lawyer asks the other side to "admit." For example, your lawyer might ask the other side to admit that there is a vacation home in Florida that was purchased during the marriage with marital funds and was appraised for $200,000 one year earlier. Your lawyer might also ask the other side to admit the existence, amount, and marital character of certain retirement funds. Once requested facts are admitted, they are submitted to the court and those facts need not be fought over at trial.
Status Calls: Throughout your case, the judge will want to know how things are going – whether settlement talks are progressing and, if trial is likely, where things stand on completing discovery. Early in the case the court will want to make sure that the bills are getting paid and the kids are doing well in school and that the family situation isn't breaking down too badly.
To stay on top of a case, the judge requires the attorneys to regularly update the court. This is done at a "status call." Typically, only one attorney shows up in court (they usually talk before hand and agree which one of them will go to court) and talks with the judge for a minute or two to give an update. Every time your case is before the judge it will probably be scheduled for another "status date" – usually one month in the future. The court likes to force the attorneys to come back and continually advise them on the status of a case so things don't fall through the cracks.
Pre-Trial Conferences: If your case doesn't settle, a trial will be scheduled. The judge will have to block off tiem for your trial and will need to know how many witnesses will be called and how long the case will take. The lawyers (and sometimes the parties) must meet with the judge to schedule the dates and times of the trial as well as to make sure the witness lists and exhibits are all in order. The judge may use the opportunity to knock heads to jump-start stalled settlement talks. The judge may advise an attorney whose client is demanding too much that, "if the case went to trial and I heard the evidence that you've explained to me today, your client would fare far worse than the settlement that is currently being offered. I hope you'll try to talk some sense into your client or you may lose a lot more than you can possibly gain by going to trial." In a "final pretrial" conference the lawyers and judge discuss how many witnesses will testify and how long the case will take and they set aside that time in their calendars
Settlement: Settlement talks go on throughout the case. They typically occur less frequent at the outset because information must still be gathered (discovery). As the discovery is completed, the parties and the attorney get a better idea of what's what and the settlement talks become more productive. If your lawyer has done his job, you should have some significant bargaining leverage and leeway in settlement discussions. You're probably better off negotiating a settlement where you have 100% certainty of what you're getting and giving up -- even if the final settlementis less than you want. At a trial, you have no leverage with the judge and the best you're attorney can give you is odds of success. If you can find a reasonable settlement that will help you avoid trial, consider it closely with your attorney.
Trial: This is the part you'd like to avoid. At trial, nothing is guaranteed. A 100% certainty of a so-so deal may well be better than a roll of the dice.
In divorce court we don't have juries anymore – we only have bench trials where a judge makes the final determination. Still, judges are human, they have their own prejudices and leanings, they make mistakes, and they have good days and bad days. Your divorce is probably the biggest financial event in your life. You may never again experience the emotional and psychological stress it brings. Don't leave anything up to chance. Work with your attorney and consider the benefit of a guaranteed settlement that may not have everything you want, but comes close, and balance that against betting everything on a calculated roll of the dice. If setlement isn't in the cards, rest assured in your lawyer's preparation, research, and advocacy.
Do-Overs -- Motions to Reconsider: If you want a do-over you've got 30 days from the entry (not the pronouncement) of the judgment to get your request on file. Lots of people try them and they nearly ALL fail. There are three ways to qualify for a do-over in court: 1) newly discovered evidence that was not available at the time of the trial, 2) a change in the law, and 3) the court's misapplication of the law to the facts. That last one is limited: you can't just say "I don't like the court's decision." Instead, you have to show that the court committed a legal goof along the lines of "2 + 2 = 5."
Most folks who do their own divorce and make a bad mistake try to use the first option -- "newly discovered evidence." After they hear the judge's ruling they figure "Oh, I didn't know that producing receipts and cancelled checks was important. I have those in a filing cabinet at home. I want a do over so I can show you the evidence of my expenditures." It doesn't work that way. "Newly discovered evidence" means evidence that did not even exist at the time of the trial or, if it did exist, it was virtually impossible to obtain.
Conclusion: If you face any contested issues, hire a lawyer. If your case is simple and uncontested, you can do it yourself and to do that, you'll be best served by using our Quick Online Divorce service.
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> Broken Promises / Give Back the Ring
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> The Advantages of Filing First
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