Often spouses are overwhelmed with emotion and endless questions when they are facing a contested divorce. A contested divorce means that both spouses do not completely agree 100% on all issues involving child custody (parental responsibility), visitation (parenting time) and division of assets. Because most divorce cases are settled prior to trial, it is important to find an attorney who can guide your case efficiently through the following steps. You also need an attorney who continually looks for ways to negotiate a settlement as early as possible in order to minimize costs and stress. The more issues you and your spouse can agree on with respect to custody (parental responsibility), visitation (parenting time) and division of assets, the lower your attorney fees should be.
1) A Petition for Dissolution is filed. The first step is to file a Petition for Dissolution. The spouse who files for divorce is called the “petitioner.” The other spouse is called the “respondent.” The respondent must be properly served with the Petition.
2) The other spouse files their Appearance and Answer. The respondent must file an appearance and answer to the petition within 30 days. The respondent may file a counter-petition.
3) Comprehensive Financial Statement. Within 30 days of the filing of defendant’s appearance or the first responsive pleading, each party must serve a completed Comprehensive Financial Statement with corroborating documents on the other party.
4) Written discovery. Both sides exchange documents and information, which is called “written discovery.” Written discovery allows the attorneys to gather information about the assets, debts, income, expenses, and future needs of the spouses and children. In order to obtain a fair settlement, it is essential that your attorney obtain this information. Each side has 30 days to answer written discovery.
5) Motions seeking temporary relief may be filed. Your attorney may need to file pre-trial motions seeking temporary relief while the divorce is pending such as temporary custody of the children, child support, spousal maintenance, exclusive possession of the marital home, payment of bills while the divorce is pending, attorney fees or expert fees.
6) Discovery motions may be filed. Your attorney may also need to file motions if the other side is not complying with the discovery requests. If the other side objects to the motion, such motions can take a month or two to get resolved.
7) Depositions may be taken. Once written discovery is complete and discovery issues appear to be resolved, depositions may be taken of the spouses or other key witnesses to obtain additional information. The “oral discovery” phase can take a couple of months, depending on the number of depositions to be completed and the ease or difficulty of scheduling the depositions.
8) The spouse’s finances must be thoroughly analyzed. The income, assets, debts, liabilities, investments, retirement plans, insurance policies, etc. must be thoroughly reviewed and analyzed so that an equitable division of assets and debts can be made. Often the spouses retain independent financial experts to provide valuations of the assets, which may lead to a “battle of the experts” because of differences in the valuation of assets, pension plans or closely-held businesses.
9) Spouses complete parent education program. Spouses with minor children who are involved in any action involving custody (parental responsibility) or visitation (parenting time) are required under Illinois law to complete a four-hour parent education program. In DuPage County the program is called “Parent Education” and in Cook County it is called “Focus on Children.”
10) The parties may be required to participate in mediation. The parties may request or the court may order that the parties participate in non-binding mediation to attempt to resolve the contested issues.
11) A custody (parental responsibility) evaluation may be ordered and/or a GAL may be appointed. If the spouses cannot agree on custody (parental responsibility) or there are other contested issues such as visitation (parenting time), parental responsibility, access to the children or other non-economic issues, a spouse may request or the judge may order a custody (parental responsibility) evaluation to be completed by a psychologist or psychiatrist to assist the judge in making a custody determination. The custody evaluator meets separately with and interviews the children and parents, and submits a written report containing impressions and opinions to the judge. The spouses must pay the cost of the custody (parental responsibility) evaluation. A GAL (guardian ad litem) is similar to a custody (parental responsibility) evaluator except that the GAL is a lawyer, not a psychologist or psychiatrist. A GAL has received special training approved by the court in child development, substance abuse, domestic abuse, and mental health issues. A judge may appoint a GAL, at the parents’ expense, to meet with the parents and children to advise the court about the child’s best interests in order to assist the judge in making a custody (parental responsibility) decision. The GAL may also meet with other people involved with the child such as teachers, grandparents and doctors.
12) A pre-trial settlement conference may be held. Next, a pre-trial settlement conference is scheduled where the attorneys and judge meet to discuss the facts of the case, the contested issues, and the possibility of settlement. Depending on the judge, the spouses may or may not be required to attend.
13) Trial. If the case cannot be settled, then the case is set for trial. At the conclusion of the trial, which can take days and be held over a period of weeks or months, the judge determines all contested issues regarding custody (parental responsibility), visitation (parenting time) and division of assets and debts. For example, the judge will determine whether joint custody (shared responsibility) is appropriate or whether one parent will have sole custody (responsibility), the visitation (parenting time) schedule, and how the assets are divided including real estate, automobiles, personal property, etc.