Dissolution of Marriage/Divorce

1. Joint and Simplified Petition for Dissolution of Marriage/Divorce
a. Do you qualify
b. If so, what is the process
c. If not, what do you do

DISSOLUTION OF MARRIAGE/DIVORCE

1. Joint and Simplified Petition for Dissolution of Marriage/Divorce. A Joint and Simplified Dissolution of Marriage is a court procedure that allows parties to get divorced faster and more easily if they meet certain specific criteria.

a.   Do you qualify? You can file a Joint and Simplified Divorce Petition if all of the following are true:

  • You and your spouse BOTH agree to get a divorce.
  • You and your spouse BOTH fill out the paperwork together.
  • You and your spouse BOTH attend court.
  • You OR your spouse was an Illinois resident or was stationed in Illinois while a member of the armed services for at least 90 days before filing your petition asking for a Joint and Simplified Dissolution of Marriage.
  • The duration of the marriage does not exceed 8 years.
  • You and your spouse do NOT have any children together and have not adopted any children together.
  • You or your spouse are NOT currently pregnant;
  • You and your spouse do NOT have any interest in real property (house or land).
  • You and your spouse do NOT have any interest in retirement benefits, unless the retirement benefits are exclusively held in individual retirement accounts and the combined value of the accounts is less than $10,000.
  • Neither you nor your spouse will receive spousal support from the other.
  • The total fair market value of all property owned by you and your spouse, including pensions and after subtracting debts that you may owe, is less than $50,000.
  • You and your spouse have executed a written agreement dividing all assets that are valued over $100 and have allocated responsibility for debts and liabilities.
  • The combined gross income (before taxes) of you and your spouse is less than $60,000.
  • Your gross income (before taxes) is less than $30,000.
  • Your spouse’s gross income (before taxes) is less than $30,000.
  • You and your spouse have disclosed all assets and liabilities for all years of the marriage.
  • You and your spouse have disclosed to each other your income tax returns for all years of the marriage.

b.   If so, what is the process? If you qualify for a Joint and Simplified Dissolution of Marriage, you must complete the following forms:

  • Application for Waiver of Court Fees (if applicable).
  • Joint Petition for Simplified Dissolution of Marriage and Verification of Joint Petition for Simplified Dissolution of Marriage (both parties must sign the Joint Petition in front of a Notary Public, who will complete the notary public section).
  • Joint Affidavit Regarding Separation of the Parties Division of Property and Waiver of Bifurcated Hearing and Verification of Joint Affidavit Regarding Separation of the Parties Division of Property and Waiver of Bifurcated Hearing (Both parties must sign the Joint Affidavit in front of a Notary Public, who will complete the notary public section).
  • Agreement as to Assets and Debts (both parties must sign in front of a Notary Public, who will complete the notary public section).
  • Judgment for Dissolution of Marriage (both parties must sign the Judgment).

Once you have completed the required documents as listed above, e-file them with the Lake County Circuit Court Clerk’s Office and contact the Clerk’s Office in person or at 847-377-3209 to obtain a court date.  Additionally, pay the required filing and court reporter fees. Both you and your spouse will need to be present in court on the assigned date received from the Clerk’s office. Make sure you have an original and at least two copies of all of your documents. On the day and time specified by the Circuit Court Clerk’s Office, you will appear in court to present your Joint Petition for Simplified Dissolution of Marriage and the proposed Judgment for Dissolution of Marriage for the Judge to read, approve, and sign.  You may be asked to testify to the information contained in the Judgment.

c.   If not, what do you do? If you do NOT satisfy all of the criteria listed above in Paragraph (b), you must proceed with a standard Dissolution of Marriage. 

 
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2. Standard Dissolution (“Divorce”) Proceedings

a.   Jurisdiction (can you file in Illinois?): The first step is to make sure that the Court has jurisdiction over your case. One or both spouses must be a resident of Illinois (or stationed in Illinois while a member of the armed services) for at least 90 days prior to the filing of the case, or not less than 90 days before the final judgment is entered. 

b.   Venue (where do you file in Illinois?): You can file for divorce in the county in which you reside or the county in which your spouse resides.  Filing in a county where neither you nor your spouse resides requires a written request (Motion) and hearing to proceed.  The Motion must be filed at the same time that you file for divorce.

c.   Starting the Process. Prepare a Petition for Dissolution of Marriage, which will be filed with the Circuit Court Clerk’s Office. Note: In any and all petitions filed with the court, you must tell the truth, and must sign the petition as your certification of its truth.

d.   What must be included in a Petition for Dissolution of Marriage:  A Petition for Dissolution of Marriage must be in writing, and you must sign it. Each Petition for Dissolution of Marriage should include the following information:

  • Caption, including the filing party’s name as Petitioner and the other spouse’s name as Respondent;
  • Each spouse’s age, occupation, and residence with the length of residence within Illinois;
  • Date of marriage and the state and county in which it was registered;
  • Whether any other court action is pending for a dissolution of marriage in any other county or state;
  • That the court has jurisdiction (see above);
  • That irreconcilable differences have caused an irretrievable breakdown of your marriage and that efforts at reconciliation were not or would not be successful;
  • Names, addresses and ages of all living children of the spouses, and whether a spouse is pregnant; (Note: it is preferable to use the initials of all minor children instead of full names and only the year of each child’s birth and age as opposed to the actual date of birth of a child).
  • Whether any arrangement has been made between the spouses as to support, parental responsibility allocation and parenting time;
  • Whether any arrangement has been made between the spouses as to the support or maintenance of each spouse; and
  • The relief sought (what you want the Judge to award to you and/or your spouse).

e.   Filing with the Clerk:  The Petition must be e-filed with the Clerk of the Court. A case number and a Judge will be assigned, and an official court file will be opened.  (you will be sent a court date 30 days prior to your first court appearance.  If your address changes notify the clerk’s office so that you will receive this notice.)

You must file the original and three copies of the Petition. This relates to any of the other cases discussed in this booklet [Dissolution of Marriage, Legal Separation, Invalidity of Marriage, and Dissolution of Civil Union].

You must also e-file the following documents at the Lake County Clerk’s Office: 

  • Summons. The appropriate summons form is titled: “Summons Illinois Marriage and Dissolution of Marriage Act”.   You will need to complete the summons form with the case name, the name and address of the opposing party and your information.
  • Affidavit of Military Service. The Affidavit of Military Service informs the Court whether the Respondent is or might be in the military service of the United States. You must complete the form truthfully and accurately and include your name and contact information at the bottom.
  • Declaration Under Uniform Child Custody Jurisdiction Act (UCCJEA). This form is only required if you and your spouse have minor children together. The form requires detailed information about the children involved in this action and where they have lived for the past five years. Complete the form truthfully and accurately and include your name and contact information at the bottom.

 
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f.    Service of Process: The process of officially delivering the summons and petition to the other party is known as service of process.  This provides legal notice of your divorce action to the other party.  A party may be served by the Sheriff or by publication in a newspaper.

  • Service by the Sheriff: The Lake County Sheriff can attempt to serve your spouse if he or she lives or works in Lake County.  To hire the Sheriff’s office, you must take two copies of the file stamped summons and Petition for Dissolution of Marriage to the Lake County Sheriff’s office. There is a fee, which varies depending on where your spouse lives within the county. You should call the Sheriff’s office at 847-377-4000 to determine the exact fee. If you cannot afford the fee, follow the steps in section 5.2. The Sheriff only accepts cash or checks.  All proper documents and fees shall be delivered to: Lake County Sheriff Attn: Civil Process 25 S. Martin Luther King Jr. Ave. Waukegan, IL 60085. A minimum of 2 weeks is required for service.

If your spouse lives outside of Lake County, Illinois, then you need the Sheriff of that county to serve your spouse. You should contact the Sheriff of that county to determine the exact procedure and fees.

  • Service by Publication: If you do not know where your spouse lives or works, or if the Sheriff has tried and failed to serve your spouse, then you may be able to serve the Respondent by publishing a notice in a local newspaper. You must get a Court Order signed by the Judge allowing you to publish the notice in the local newspaper.
  • Proof that the Service has been Completed: All affidavits of service by Lake County Sheriff will be returned to the Clerk of the Circuit Court for filing.

To serve a person by publication, you must fill out two court forms and e-file the forms at the Circuit Court Clerk’s Office. If you have obtained an Application for Waiver of Court Fees, you must also present this order to the clerk when you e-file your forms for publication to waive the publication fee.

The first form you need to file is called a Notice of Publication.  This form notifies the Respondent that he or she must file an appearance with the court by a particular date. The clerk will provide the date and courtroom to be listed on the form. The second form is called an Affidavit for Service by Publication. This form must be signed and notarized. Fill out the form but do not sign it until you have a notary to witness your signature. The clerk’s office does provide a notary free of charge, you must have a state I.D., drivers license, or government issued I.D.

After the forms are e-filed, you will designate a newspaper company, either The News Sun or The Daily Herald. The newspaper representative will call you for payment of the publication fee (unless you had the fee waived as stated above). Upon payment of the publication fee, the newspaper will publish the notice.  The newspaper will mail you a Certificate of Publication listing the days that your notice ran.  You must file that Certificate of Publication with the clerk’s office. If the newspaper fails to send you the certificate, you must contact the newspaper and obtain the certificate. The certificate is required to show the Judge that service was completed.

The court clerk must mail a file stamped copy of the Notice of Publication form to your spouse/partner at his/her last known address and file a Certificate of Mailing, stating that the Notice of Publication was mailed. You should check with the court clerk to make sure that this was done.

g.   After your spouse has been served: Your spouse has 30 days after being served to file an “Appearance” (a court form) in your case.

  • If your spouse has filed an Appearance and you have reached an agreement on all issues, you can request a prove-up hearing date. You can obtain a date by submitting a Motion and Notice of Motion to the Clerk’s office or from your Judge if you are already in court for a previously scheduled appearance.  A prove-up hearing is the court date when you appear before the Judge and request that the Judge grant you a divorce based on the terms of your agreement.   You must bring to court all of the necessary documents for the prove up and follow the prove up instructions below.

  • If your spouse does not file his or her Appearance within 30 days of being served, you will file a motion for default, see instructions below. 

h.   Default: To obtain a Default Judgement and finalize the divorce without our spouse’s participation, you must:

  • Complete a Motion for Default and a Notice of Motion.
  • Contact the Circuit Court Clerk’s Office in person or by calling 847-377-3209 to set a date to present your motion to the court.
  • Send your Motion for Default to your spouse, along with a Notice of Motion.  The Notice of Motion should state the date and time that you will appear before the Judge for hearing on your Motion, as well as the courtroom number.
  • Appear in court at the specified date and time to present your motion to the Judge.  If your spouse does not appear at that time, the Judge may enter an Order of Default.
  • If your spouse was served by publication, you may be able to go before a Judge and complete the prove-up that same day.
  • If your spouse was personally served with the Petition for Dissolution of Marriage, you will need to mail him or her the Order of Default and set another date to return to court to complete the prove-up.
  • If you and your spouse have minor children together, you must complete the Lake County Parenting Class before the final prove-up hearing.

 
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i.    Prove-up on Uncontested Proceedings: If you have reached an agreement with your spouse, you may appear in front of a Judge to finalize your case. This is known as a prove-up. You will contact the Clerk of the Court to obtain a prove-up date before the appropriate Judge to appear with your spouse. If your spouse does not plan to appear in court on the date of the prove-up hearing, you must send a Notice of Motion to your spouse indicating the date of the prove-up.  Your spouse should also sign a Stipulation, which states that they agree to the terms of the divorce and the case can proceed as in a case of default (this form can be found on the Clerk’s website).

On the day of the prove-up hearing, you will present to the Judge a proposed Judgment of Dissolution. The Judgment for Dissolution of Marriage is a final order of the court that the judge signs granting you a dissolution of your marriage. 

The Judgment for Dissolution of Marriage details the terms of your financial settlement, either on its own or by incorporating an agreement that the two of you have drafted and signed (commonly known as a Marital Settlement Agreement).

At the prove-up hearing you will need an original and two copies of the following documents:

  • Judgment for Dissolution of Marriage;
  • Certificate of Dissolution of Marriage;

If there are minor children, you will also need the following:  

  • Certificate of Compliance with Parenting Class;
  • Parenting Agreement, or proposed Order;
  • Declaration Under the Uniform Child Custody Jurisdiction Enforcement Act;
  • Uniform Order of Support;
  • Notice to Withhold Income for Support.

At the prove-up hearing, plan to arrive at the assigned courtroom early. When you arrive at the courtroom, provide the clerk with the original Judgment of Dissolution, Marital Settlement Agreement, Parenting Agreement and any other applicable documents. The extra copies will be stamped by the clerk at the end of the prove-up hearing and returned to you. 

When your case is called by the Judge, the Judge will ask questions and will determine whether everything is in order.  If so, you will be required to pay the court reporter. The court reporter’s fee is $75.00.  This amount is subject to change, and you should confirm the court reporter fee by calling the Court Reporter Office at 847-377-3904 prior to the prove-up hearing date. Note that, if you have previously been granted an Application for Waiver of Court Fees, this fee will be waived.

At the prove-up hearing you will be put under oath and asked questions regarding your Petition for Dissolution, and what you are asking of the court.  If the Judge is satisfied that all the requirements have met, the Judge will state his or her findings, grant the dissolution, and sign the Judgment for Dissolution and other orders as required. Wait for a copy of the Judgment and orders signed by the Judge before leaving the courtroom. 

If your spouse is not in court for the prove-up hearing, then you must send a file-stamped copy of each order to your former spouse and you must file with the clerk’s office a certification that you have sent a copy of the orders. 

If you have requested permission to return to your maiden name or if you need to change ownership of bank accounts or car titles, you should request a certified copy of the Judgment for Dissolution from the Circuit Court Clerk’s Office.  There is a fee to receive a certified copy. 

j.      Trials on Contested Proceedings: If you and your spouse do not reach an agreement regarding all issues related to the divorce, including the division of assets and debts, maintenance, as well as allocation of parental responsibilities, parenting time and support issues if you have minor children together, you will have a trial. NOTE: It is beyond the scope of these materials to detail how to conduct a contested trial. In the event you are unable to bring maters to resolution by agreement, it is strongly recommended that you consult with an attorney.

k.   Case Management. You will be required to participate in a Case Management Conference which takes place within approximately 90 days of filing your case.

The Case Management Procedures are found at Local Court Rule 4-2.11 and it is strongly suggested that you read that Rule in its entirety. Procedurally, it states as follows:

  • You will receive notice from the clerk setting a date for the Case Management Conference.
  • Before your court date, you must send to the other party or his or her attorney a comprehensive Financial Affidavit and file an Affidavit of Service with the Circuit Court Clerk’s Office. DO NOT file the Financial Affidavit with the clerk.
  •  If there are minor children, before your court date, you must file with the Clerk a written Proposed Parenting Plan, which you must send to the other party or his or her attorney unless you have signed a written Final Parenting Plan with your spouse.
  • When you appear at the initial case management conference, the court will assign you a trial date and other deadlines. At that time, you will be required to complete a Case Management Order.
  • Trial dates will be set depending on the complexity of the issues before the Court.

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If you have children, the Case Management Conference will also include:

  • Whether you have completed the mandatory Lake County Parent Education Program (PEP); and
  • Whether you have reached an agreement regarding the children and whether you have filed a Proposed or Final Parenting Plan.
  • If you have not reached an agreement regarding the children, the Case Management Order will include whether you should be required to attend mediation, or if an attorney should be appointed to represent your child(ren).

The Case Management Order will set additional court dates, which are further described below and may include the following:

  • A Pretrial Settlement Conference date.
  • A Subsequent Case Management date.
  • A Final Trial Conference date. 
  • Trial dates.

The Case Management Order will also include Discovery Issues, such as deadlines for disclosing witnesses and completing discovery.

Failure to appear in court for your scheduled Case Management Conference may result in your case being dismissed.

l.    Pre-Trial or Settlement Conference: Prior to trial the Judge may schedule a pre-trial conference. (See Local Court Rule 4-3.11). You must complete a settlement conference memorandum and send it to the opposing party and the Court at least two days prior to the court date. You must also provide to the other party an updated Comprehensive Financial Affidavit (if anything has changed since the last affidavit) no less than seven days prior to the Trial Conference (see below).

 
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m.  Subsequent Case Management: The Subsequent Case Management date is to verify the parties have reached an agreement as to parenting issues, or for the Court’s consideration of referral to mediation, or appointment of a Guardian Ad Litem or in the event there are no minor children, Subsequent Case management is intended to identify and simplify issues.

n.   Final Trial Conference: Final Trial Conferences are scheduled approximately two weeks prior to your scheduled trial date. The purpose of the final trial conference is to determine the issues that will be decided at trial. 

At this conference, both sides will be expected to present the Judge and the other party with the exhibits that they intend to present at trial.  These exhibits should be numbered and clearly marked to reflect which side (Petitioner or Respondent) is presenting them. Each side should present one copy of the exhibits to the Judge and one copy to the other side.

o.   Trial. All trials are scheduled on Monday mornings and extend for two weeks.  Both parties must appear on Monday and whatever day your case is scheduled thereafter during that two-week period. On Monday morning, the Judge will tell you what day(s) that week (or the following week) the Judge will likely hear your case.

At trial, you will present evidence to the Judge to support your case.  You should make sure to have all of your documents and witnesses present with you on your scheduled trial date. There are Rules of Evidence that govern the information that may be presented in court.  The Judge will expect you to follow these rules when presenting your case.

The person who filed the Petition for Dissolution of Marriage (the Petitioner) will present his/her evidence first. The Respondent will present his/her evidence after the Petitioner has finished.

After both sides have presented his or her case, the Judge will make a ruling.  The Judge may or may not rule immediately after the trial but must rule within 60 days. The Judge may take time to think about the evidence presented before making a decision.

The decision of the Court will be entered as, or incorporated into, a Judgment for Dissolution of Marriage.

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