In the Illinois divorce process, either spouse has the option to file for dissolution of marriage since Illinois is a “no-fault” state. A term we hear often, especially in celebrity divorces, is “Irreconcilable Differences.” This term means that the court is generally not interested in who did what. The court is interested, however, in knowing if the marriage can be saved.
In order for a judgment of dissolution of marriage to be entered, the court must find that your marriage has suffered an irretrievable breakdown, that past attempts to save your marriage have been unsuccessful and that future attempts to fix your marriage would be in vain. In fact, any future attempt would actually be against the best interests of your family. There is an irrebuttable presumption that the requirement for irreconcilable differences has been met if the parties have lived separate and apart, continuously, for at least six (6) months. How Long is the Illinois Divorce Process? STEP 1: Filing the Petition for Dissolution of Marriage with The Court One of the biggest deciding factors in how long your divorce will take comes down to the initial filing of the petition. In your Petition, you give the court the basic information about you, your spouse and your marriage. How old are you both? Where do you live? When did you get married? Are there minor children from the marriage? What I mean about that is how are you filing the petition? Did you discuss the divorce ahead of time with your spouse or is it going to be a shock when they receive the papers? If it is possible, it is always good to try to sort through as many issues as possible prior to filing the paperwork for dissolution of marriage. Then you will know from the start what issues are agreed to and what issues remain “contested” or disputed. This is critical in determining how long the divorce process will take for you. If you come to the realization that both you and your spouse are on board to get the divorce and you agree to all terms of the divorce, then your Illinois divorce process timeframe from Point A (filing for divorce) to Point B (having a judgment entered dissolving your marriage) is significantly reduced. It generally comes down to the time involved to draft the necessary documents and the court’s schedule to get you in. It is not unheard of to hear that someone’s divorce was finalized within a month from the date they filed. That usually means that the parties waited to file the petition until they finalized their agreement in writing. This is usually the most cost-effective practice. STEP 2: Serving Your Spouse with The Petition for Dissolution of Marriage and the Summons for them to Appear and Answer For whatever reason, let’s say that you have filed your petition with the court, but you have no agreement with your spouse, maybe they do not even know that you filed. You must serve your spouse with the petition for dissolution of marriage if you want to move forward. Typically, the County Sheriff will serve the Petition and Summons for you – after you pay a fee, of course. You can also ask the court to give you permission to serve your spouse by using a private process server. The latter is usually fastest. Either way, obtaining service on your spouse usually starts to add time to the clock. Not the court’s clock but your own personal clock. The court will not move forward until your spouse has been served, so you can see why discussing the divorce ahead of time could, potentially, save you some time. There are situations where service can be obtained in another manner, such as publication. STEP 3: Your Spouse Must File Their Appearance and They Are Given Time to File an Answer to Your Petition for Dissolution Once your spouse is served, they will have time to file their own appearance in the matter. They will also be given an opportunity to respond to your petition by filing an Answer to the Petition for Dissolution of Marriage. This could possibly be another opportunity to see if the two of you can come to an agreement. If not, you must continue on. Remember that if there are minor children involved, you and your spouse may be ordered to attend mediation to resolve the child-related issues. STEP 4: Litigation, Discovery and Temporary Orders If you and your spouse have disagreements regarding how to finalize the divorce, then you will likely begin the true litigation process, and this is usually where time starts adding up. To start, if there are disagreements about finances, then you will both need to exchange a financial disclosure. This is a somewhat basic exchange of information where you disclose your assets, debts, income, etc. You must provide some sort of support to this document. That can be accomplished by providing tax returns, paycheck stubs, bank statements, etc. To continue building your case for trial, this is the time when you start asking questions and requesting additional documents. This is the “discovery” phase. This is a crucial part of the Illinois divorce process, and it can be time-consuming. During this time, the parties might petition the court for different kinds of temporary relief. For example, if you are no longer living together then the court might enter a temporary order for child support or maintenance. This will all depend on the facts of your case, as each case presents a unique set of facts for the court to consider. When petitions and motions are filed, the other party usually has some sort of time to respond to what was filed. Eventually, there will be a hearing regarding the document that was filed, if no agreement can be reached. As you can imagine, this part of the divorce process takes time and there tend to be multiple court appearances during this time. This makes it difficult to answer the question of “how long does it take to get a divorce”? STEP 5: Pre-trial The pre-trial phase of the divorce process is when the Judge gives a recommendation on how to resolve the outstanding issues between the parties. If both parties are represented by attorneys, the pretrial is often held in the Judge’s chambers between the Judge and the attorneys only. This is another opportunity to reach a settlement without the added expenses and time of going to trial. Step 6: Trial A trial is the last step in the Illinois divorce process. If you were unsuccessful coming to an agreement with your spouse, then at the trial the Judge will be presented evidence from both sides. The Judge will also hear testimony from witnesses. Sometimes the only testimony comes from the parties themselves, but there can be an assortment of witnesses. If someone claims to have a disability, for example, you may have a doctor as a witness. During trial you and your witnesses will be asked questions by your attorney and by opposing counsel. Your spouse also has an opportunity to call their own witnesses. A trial could last half a day or could be set for multiple days. It is not uncommon to hear of a trial having one day of testimony and then another day of testimony a month later. Most courts have a heavy call, which means that they hear multiple cases each day. If a trial lasts longer than expected, the Judge may not be able to resolve the case on that scheduled day. TAKE AWAY Sometimes the length of the Illinois divorce process simply comes down to how well you and your soon-to-be ex-spouse communicate. Understandably, it is very difficult to set emotions aside in a divorce, but try to remember that the Court is only there to decide legal issues and if you cannot come to an agreement then the Court will decide for you at trial. Once you get to trial, you are no longer in control and it comes down to the facts as the Judge sees them. Some people are fine with leaving the final decision to the Judge, but many others would prefer to have more of a say in the outcome. When you are wondering how long it takes to get a divorce, contact the experienced family law attorneys at Anderson and Boback for guidance throughout the entire Illinois divorce process. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/illinois-divorce/illinois-divorce-process-time-involved/
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When I asked this question to a couple of my friends and even family members only one person was able to answer what is a deposition. A deposition is an interview of a party or a witness that can be used in court. The parties to the case sit down in a room with their attorneys, and each attorney can ask the opposing party questions and/or witnesses who may have information regarding the case. Illinois Supreme Court Rule 202, is the rule that governs the purpose of depositions. The rule states that “Any party may take the testimony of any party or person by deposition upon oral examination or written questions for the purpose of discovery or for use as evidence in the action.” Simply speaking, a deposition is a testimony that is taken out of the courtroom, there is no judge or jury present, only a court reporter who will record and transcribe the deposition. A person who is deposed is still sworn in (under oath) just like they would be in court. Depositions are usually held in a conference room, in a lawyer’s office, in the county in which the person who is being deposed resides or is employed, or if it is the plaintiff who is getting deposed, then in the county in which the case is pending. (Illinois Supreme Court Rule 203). What is a Deposition in a Divorce Action? In Illinois, depositions can either be for retrieving information from the opposing party or a witness, which is mainly called a discovery deposition, or to obtain evidence from the opposing party or witness; which is called an evidence deposition. In divorce actions, attorneys use divorce depositions as an informal way to get information from the opposing party after each side has exchanged financial records and other records and information regarding the other spouse. If a spouse has not turned over all of the records that the opposing party is asking for during the discovery phase of the divorce, or if the information obtained during discovery leads to the opposing party wanting to elicit more information, then a deposition may be appropriate. Lawyers use a deposition in a divorce as a tool to ask the opposing party or witness questions regarding their submitted records or lack thereof under oath, and the lawyer doesn’t have to wait until the trial or a hearing to ask the person questions. What is the Benefit of A Deposition in a Divorce? Some people may only think that a deposition is only used in tort litigation, but depositions are frequently used in a divorce action. To help better understand the benefits of a deposition, let me give you a scenario; both parties exchange their financial records and account statements, but my client has reason to believe that the other spouse is hiding some of his assets and not being forthcoming during the discovery process. So instead of waiting until trial to ask the opposing spouse questions relating to his financial assets, my client decides to have a deposition in order to ask those important questions not only relating to the case but to the other spouse’s financial assets, while the other spouse is under oath. All of the spouse’s answers given during the deposition are recorded and they are bound to their answers. Those answers to my questions during the deposition can be used against that spouse who answered the question in court to discredit the spouse if their answer to the same question given in court is different. This is a good way for my client to get the answers they need and for me to try and facilitate a divorce agreement. or prepare for trial in the case there is no agreement. Depositions can be very beneficial to the client and for their lawyer who is negotiating a divorce settlement on their behalf, the downside is that depositions can be costly and time-consuming, depending on the number of people being deposed. Before you suggest having a deposition, first consult a lawyer who can help navigate you through the process. Contact Anderson and Boback today for a confidential consultation to learn more about divorce deposition. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/illinois-divorce/what-is-a-deposition-in-divorce/ The world is becoming more global and families, now more than ever, are less tied down to one city, one state, or even one country. When a couple with children decides to end their relationship, the already emotional process can become even more complex if the separating parents wish to live in different states or different countries. Furthermore, if both parents wish to share custody of their child, their desires will be determined by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) which regulates these issues. The UCCJEA has been passed by Illinois and all of the other states in the United States. In this article, we discuss the UCCJEA and international child custody disputes. Which State Has Jurisdiction When a Court in a Different State is Involved in Child Custody? If one parent files a child custody case in one state and the other files in another, only one of the state’s courts has the authority, or jurisdiction, to hear the dispute. The UCCJEA has a framework to help judges decide which court is the best place to move forward. Typically, the court where a child physically lives will have jurisdiction; however, there are several exceptions that are designed to prevent a parent from just taking a child and running to a place that the parent perceives to be friendlier. Thus, when faced with an interstate or international child custody matter, a party is best served by acting quickly to seek adequate legal advice. The International Child Custody Process for Determining Whether to Allow a Parent to Relocate a Minor Child to a Different State or to Another Country In Illinois, the same application of factors used in cases where a parent seeks to relocate the children to another state on a permanent basis involves the same process as international custody law cases where the parent wishes to move the child out of the country. In both cases, Illinois courts will consider the indirect and direct benefits of the removal to the minor children. Relocation of children to another state, however, is a complicated process. It can be extraordinarily difficult for the custodial parent to convince the court that removal would be in the best interests of the children, particularly when removal is out of the country. The Illinois Supreme Court has stated that the determination of the best interests of the child is not a simple test, but rather must be made on a case-by-case basis, depending on the totality of the circumstances. In re Marriage of Eckert, 119 Ill. 2d 316, 326 (1988), the Eckert court identified certain factors that help a court in determining the best interests of the child, including (1) the likelihood that the proposed move will enhance the general quality of life for both the custodial parent and the child; (2) the custodial parent’s motives for seeking removal, to determine whether the proposed move is a ruse designed to frustrate or defeat the non-custodial parent’s visitation; (3) the noncustodial parent’s motives in resisting removal; (4) the effect removal will have on the non-custodial parent’s visitation rights because it is in the best interests of a child to have a healthy and close relationship with both parents, as well as other family members; and (5) whether a reasonable visitation schedule can be worked out. Eckert, 119 Ill. 2d at 326-27). In the 2017 case In re Parentage of P. D., the Illinois Appellate Court observed that the purpose of the Eckert factors is not to establish a test or checklist in which the parent seeking removal must meet every prong or more prongs than not; rather, the Eckert factors are to be considered and balanced by the trial court and no one factor is controlling in light of the circumstances of each unique case. In re Parentage of P.D., 2017 IL App (2d) 170355. International Child Custody Disputes If your child is presently overseas with the child’s other parent, the U.S. court can provide legal remedies. The United States is a member of the Hague Convention on International Child Abduction and countries who have signed this treaty agree to respect the custody decisions made in the courts of the member countries. Therefore, while international child custody law disputes are very complicated types of proceedings, they are also very common. Most International child custody cases involve a parent who wishes to take his or her children to another country on a temporary or permanent basis. More often than not, these types of cases involve a parent who improperly removes his or her children to another country in violation of a U.S. custody order. To gain a clearer understanding of how International child custody cases are determined, it is worth examining the case of In re the Marriage of Akula, 2010 WL 3359660 (Ill.App. 1 Dist.) In Akula, the mother received sole custody of the minor child following the parties’ divorce. Years later, the parents agreed that the child would travel to India with the Mother and that the child would remain in India, with the mother enrolling the child in an Indian school and obtaining a residence permit. The Mother in Akula still maintained an Illinois residence, and the Father also had residences in both India and Illinois. At some point after the child’s move to India, the parents disagreed about several issues regarding the raising of the child and the father filed petitions in Indian court seeking sole custody of the child. In turn, the Mother responded by filing similar petitions in Illinois, claiming that the Illinois court should have jurisdiction since Illinois should be considered the mother’s and the child’s permanent residence. The Indian court ruled that since both parents and the child were now residing in India, the child could not be removed from school in India. The court in Illinois issued the opposite ruling, holding that Illinois was still the residence of the child and the mother and that Illinois had continuing, exclusive jurisdiction over the parties and the subject matter. The Father appealed the Illinois ruling. According to the Illinois Appellate Court, India was the proper place for the custody dispute to proceed. This is because, under the UCCJEA, a child custody determination made in a foreign country that substantially conforms with the jurisdictional standards of the UCCJEA must be recognized and enforced unless the child custody law of the foreign country violates fundamental principles of human rights. Furthermore, the Appellate Court held that Illinois loses continuing jurisdiction when a child, a child’s parents, or any person acting as a parent to the child no longer reside in the state where the original judgment was entered. International Child Custody Law and the Improper Removal of a Child The Akula case did not feature the improper removal of a child from the country during a divorce process, but such an event is extremely scary and represents a difficult process for both the child and the parent. In such an event, the Hague Convention, of which the United States is a member, requires the expedited return of children to their home country when custody orders have been violated. At the present time, 98 countries have signed the treaty. However, while many countries purport to subscribe to the treaty, noncompliance has been a substantial problem, specifically in Central and South American countries. The attorneys of Anderson and Boback, LLC are knowledgeable and skilled in the area of international custody law and interstate relocation. We are available to provide legal and practical advice to parents facing an international child custody dispute. Contact us today to speak with an experienced family law attorney for a confidential consultation. Contact Robert Tarlock for questions about this blog. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody/understanding-international-child-custody/ |
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