Bloomington Illinois Divorce FAQs
A marriage may only be terminated through the Courts. There are different ways to end a marriage either temporarily or permanently, such as a legal separation, an annulment or a divorce. Although there are some minor differences, the processes for ending a marriage is very similar.
Some of the most frequently asked questions about divorce are:
What if I want a divorce but my spouse doesn't?
There is little that your spouse can do to prevent a divorce in Illinois if you want a divorce.
What is the difference between a legal separation, an annulment, and a divorce?
A legal separation does not end your marriage. You remain legally married, but intend to live separately from each other. Since you are no longer living together, you may ask the court to enter an order establishing child and property issues. An annulment is an order from the court not only ending the marriage but which says that the marriage never happened. An annulment may be the most difficult to prove unless the marriage is clearly void under Illinois law (such as where your spouse was already married to someone else when you married). In most cases, you must prove that your spouse intentionally withheld information or told you a lie to induce you to marry, and that had you known the truth, you would never have married. A divorce simply terminates the marriage. The court may enter an order as to custody, visitation, child support, property division, pensions, alimony and other issues.
Do I need an attorney?
Unless both you and your spouse may agree on all the provisions of the divorce, and expect to always agree on everything, we would recommend that you have one. It is a good idea to have someone who is familiar with the law and the court system to help you.
May one lawyer represent both me and my spouse?
No. There is always a conflict of interest in a divorce and one lawyer cannot represent both sides. But, the Respondent could decide not to fight, in which case he/she would not need an attorney. However, it is always best to receive advice from an experienced attorney when it comes to divorce.
How long does it take to get a divorce in Bloomington Illinois?
The answer to this question depends upon the circumstances. Some ideas follow: Uncontested divorce with or without children can be done in about 3-6 weeks. Divorcing parents are required to take parenting classes. If you and your spouse cannot agree on the terms of the divorce, then it could take months or even years.
Is there an advantage to filing first?
One advantage to filing first is that if you may be able to affect where the case is within the state if you and your spouse live in different areas of the state. Also, please listen to a Podcast that our firm has published on this topic.
Where do I file for a divorce?
Illinois has a residency requirement for filing for divorce. You or your spouse will have to reside in the county that you want to file. In addition, if you have children, you may need to reside in the state for at least six (6) months before filing.
Do I have to go to court?
Probably. You will only have to go to Court once If you agree to all terms of the divorce. There are other ways if you cannot attend, but you it is standard to attend court just this once if all issues are resolved. If you cannot agree on the terms, there will be a number of hearings that you will need to attend, but our firm will prepare you for these hearings so there is no reason to fear your court appearances.
What is mediation and do I have to go?
Mediation is a process that may help you and your spouse talk about the issues in the divorce and come to an agreement. If you do not agree on your own, Illinois law requires you to go through the mediation process before you may go to trial on child-related issues. This requirement may be waived, however, for good cause such as having had domestic violence in the relationship.
May I get an immediate order to help me survive?
You may ask the Court to have a hearing to establish temporary orders that will last while the divorce is pending. You may ask for a hearing at the same time that you file. However, in McLean County they are not immediate. The court will not enter temporary orders without a hearing. However, they will usually try and schedule a hearing as soon as they can. But, again, the dockets are pretty full in Bloomington Illinois and it may take some time before you are able to get before the court. This may be especially helpful if you have children so they may be taken care of with child support orders, etc.
What happens after I fill out & file the paperwork?
After filling out and filing the paperwork for your Bloomington Illinois divorce, your spouse must be “served” meaning s/he must get a copy of the paperwork and any notice of hearing for temporary orders signed so they are aware of what you are asking. “Service” is generally done by the McLean County Sheriff’s and/or a private process server from Bloomington/Normal. Your spouse will have 30 days to respond.
Do I have to have a reason to get divorced?
The only necessary reason for divorce is irreconcilable differences.
What are my rights (i.e., how is property usually divided?)
There is no one way that property, debts and other issues are divided. You may do it anyway that makes sense in your situation. However, here are some general guidelines:
Debt. The general rule is that if there debt associated with property, the person who gets to keep the property will also have to pay the debt. However, where the person getting the property has no money or is disabled and the other party makes lots of money, then the person with money might be responsible for the debt. In addition, a spouse is generally not responsible for the other’s debt unless they have signed a loan agreeing to pay for your spouse’s debt or if the debt was for a family purpose (i.e., kids’ clothes, kitchen appliances, or anything that benefits the whole family).
Personal Property. Personal property is property that is generally considered to be moveable. This includes items like cars, furniture, dishes, etc. The general rule for property division is to divide it equally (or atleast equitably) allowing each person to be able to go forward and set up a separate home. However, as with debts, a person generally gets to keep personal property he or she brought into the marriage, or property that was a gift to one person, or that was inherited by one person, unless that property has been combined with other marital property or is used in a way that it takes on the legal status of marital property. In dividing personal property, it is best to sit down with your spouse and agree on who gets what. Each should then take the property as agreed, remembering to change titles and names on accounts as necessary. It may be helpful to include the Vehicle Identification Numbers and/or any existing serial numbers for any property in your divorce decree. However, remember that it is a public document so consider any confidentiality/identity issues that may exist. If you cannot decide on your own how to divide the personal property, the Judge will decide for you.
Real property. Real property is land and anything permanently attached to land, such as a house or buildings. Generally, you will get to keep any real property you brought into the marriage, it was a gift, or it was inherited so long as you have not commingled it with marital property or otherwise changed the nature of your real property so that it takes on the legal status of marital property. If the home was purchased during the marriage, it will generally be considered marital property even if only one name is on the deed. Often the real property is sold and the money from the sale is divided equally between the parties. However, one person may “buy” out the other by giving them what they would have gotten had the property been sold. The person giving up the house should sign a Quit Claim Deed to the other person once the divorce is final. It may be helpful to include a property description in the decree itself so that you may record the order at the County Recorder’s Office or otherwise use the order to prove change of title to lenders, purchasers, title insurance companies and the like. If you may not agree on who should get the house, the court will do its best to enter an equitable order. The court may award the home to one party and award to the other party other marital assets of equal value. The court could order the home sold and the equity split, if you have no children. If you have kids, the home might go to the party with custody of the children, at least until the youngest child turns 18, or graduates from high school in the normal course, or the custodial parent remarries, cohabits with someone else or is no longer in the home. At that time the house will be sold and the party who did not reside in the home will get half of the equity as of the time of the divorce; or one party, usually the person who has been in the home, may buy out the other party, usually by paying the cost of half the equity calculated at the time of the divorce. However, remember to do the calculation during the divorce process and include in the final order the amount of equity that will be owing upon the occurrence of one of the events named above.
Retirement/Pension Plans. If both parties have retirement plans of equal value, each will generally be awarded their own retirement. However, each spouse is generally entitled to half of any retirement benefits that were earned during the marriage. If you are not the contributor to the plan and get some of the benefits, you must get a Qualified Domestic Relations Order or QDRO. Until a QDRO is signed and approved by the pension/retirement plan, it will not be split. In fact, if you do not successfully complete the QDRO, your share of the pension may not be available when you need it for your retirement, and indeed, may be lost entirely.
May I get a restraining order in the divorce?
Yes. If you feel that the other party to a divorce is harassing you, you may ask the court to enter a restraining order (or, Order of Protection) and specify what s/he wants the other party to be restrained from doing.
What if I disagree with the Judge's order?
If you disagree with the Judge’s order on one or more issues in your divorce, you have the right to appeal. This means having a higher court review your case. You must file your appeal within 30 days of the final order you are appealing from. Appealing a case is a complex and technical process and you should consider hiring an attorney to help you.
What is a divorce going to cost me? Can I afford it?
The cost of your divorce will depend on the nature and complexity of your case. Costs include legal fees, court costs, costs of document production, and depositions. As the issues that develop during a case will affect what is required to successfully litigate your case, it is impossible to predict exactly how much it will cost at the start of your case.
Simple uncontested cases will be less expensive, while more complex, adversarial cases will cost more. The less that is in dispute, the less you will spend in attorney’s fees and costs. On the other hand, if there is a strongly contested issue, you may incur additional costs and fees associated with property valuations, custody evaluations or appointment of a Guardian ad Litem for the children.
Does Illinois grant divorces based on marital fault?
While Illinois requires grounds for dissolving the marriage, the alleged marital fault or misconduct of either party is not considered in the division of property or in awards of maintenance. However, the financial misconduct of either party once the marriage has failed may be found to have “wasted” marital funds and that party may be required to reimburse the marriage for any such waste.
Can I get maintenance or will I have to provide maintenance to my spouse?
This will depend on the facts of your case. The court can order temporary or permanent maintenance to either spouse, without regard to marital misconduct.
Can I change my name at the time of divorce?
Under Illinois law, the wife can return to her maiden name as part of the final judgment, and the other party may not prevent her from doing so.
Can I get an annulment in Illinois?
Yes, in certain circumstances. In Illinois, an annulment is called a “declaration of invalidity of marriage.” It is a court order declaring that a marriage is not valid, and therefore should not be recognized by the state. An annulment is different from a divorce because a divorce is an order ending a valid marriage.
In Illinois, a marriage can be annulled if:
One of the parties to the marriage lacked capacity to consent to the marriage because she or he suffered a mental disability, was under the influence of alcohol or drugs, or entered into the marriage by force, duress or fraud;
One of the parties is not capable of sexual intercourse and the other party did not know of the incapacity at the time of the marriage;
One of the parties is less than 18 years old and did not have the consent of his or her parents or guardian, or judicial approval; or
The marriage was prohibited by law.
When can I file for divorce in Illinois?
There is no pre-filing waiting period in Illinois. A petition for dissolution can be filed as long as one of the spouses resides in Illinois on the date of filing. However, you or your spouse must have lived in Illinois for at least 90 days before the judgment of dissolution is entered. Therefore, you may live in Illinois less than 90 days before filing, but must meet the 90-day residency requirement by the time the judgment is entered.
When is my case going to be over?
There is no way to know exactly how long it will take you to get a divorce. It depends on a number of factors, such as whether your case is contested, how busy the court docket is and whether you and your spouse can agree to settle any issues without a court hearing.
If attempts to serve my spouse do not work, what is my next step?
If you cannot locate your spouse to serve him or her with the divorce papers, then you can serve by publication. Publishing a notice in the local newspaper where the case is pending is a last effort and requires court approval.
If you serve by publication and your spouse does not participate in the case, the court cannot make a final ruling on maintenance, child support, visitation, or division of property until the spouse is personally served or appears before the court. Therefore, it is worth the effort to find the absent spouse through a private investigator or other locator services to obtain personal service.
Do the other issues – child support, child custody, alimony, and property – have to be decided before the divorce is final?
Typically, the court will decide all issues in a case in a single final judgment. However, in certain circumstances, the court may choose to “reserve” an issue or, if the circumstances warrant, the court may find that legally dissolving the marriage is a priority and issue an order formally dissolving the marriage.
Such an order is not the same as the court finding that grounds for divorce exist, which may be resolved first, with the remaining issues heard by the court at a later date. However, the entire divorce case is not “final” until the final judgment is entered resolving all issues, even if the marriage has been legally dissolved first.
After I file for divorce, do I have to continue to live in Illinois?
No. If you were a continuous resident of Illinois for 90 days prior to filing, you have satisfied Illinois’ jurisdictional requirement, and you are free to move out of state without affecting your case, if there are no children involved.
Once a divorce petition is filed, court approval is required to move the children, depending on the distance of the move.
What if I am in the military and out of state?
You may file for divorce in Illinois if you or your spouse resides in Illinois or you or your spouse is stationed in Illinois.
Can a couple become legally married by living together as man and wife under the state’s laws (common law marriage)?
No. Becoming married in Illinois requires a marriage license and solemnization as specified by Illinois Law.