More about This Topic
Divorce In Illinois Without A Spouse’s Signature In Illinois
“Send me the divorce papers,” your spouse may yell at you in a moment of frustration. But, then what? No one just automatically signs divorce papers. More often than not, a spouse will refuse to sign divorce papers just to spite their other spouse.
How do you get a divorce in Illinois when a spouse will not provide their signature?
What Are Divorce Papers In Illinois?
Divorce papers to be signed are the proposed agreed documents which would bind the parties by those document’s terms after the divorce.
“To promote amicable settlement of disputes between parties to a marriage attendant upon the dissolution of their marriage, the parties may enter into an agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them, support, parental responsibility allocation of their children, and support of their children…after the children attain majority.” 750 ILCS 5/502(a)
Every divorce in Illinois is essentially finalized by one to three written documents: The Judgment Of Dissolution Of Marriage, The Marital Settlement Agreement and/or The Allocation of Parenting Time and Parental Responsibilities.
“Any agreement pursuant to [the Illinois Marriage and Dissolution of Marriage Act] must be in writing” 750 ILCS 5/502(a)
The Judgment Of Dissolution Of Marriage restates all the necessary allegations as provided by the Illinois statute, that those allegations were proven and grants the actual divorce by stating that “the bonds of matrimony heretofore existing between [Name] and [Name] the parties be dissolved and the marriage is accordingly dissolved as to both parties.”
If the divorce is very simple, i.e. no kids, almost no assets, then those issues can be squeezed into the Judgment of Dissolution of Marriage.
If there are any significant assets or debts that need to be allocated between the two parties or there is a maintenance or child support award, a Judgment Of Dissolution will need to incorporate a Marital Settlement Agreement.
The Judgment For Dissolution Of Marriage will include language stating “that the Marital Settlement Agreement, included and attached is hereby incorporated into and merged with this Judgment for Dissolution of Marriage and each and every provision is binding upon both parties.”
The Marital Settlement Agreement will include all of the details of the parties’ finances both marital and non-marital with a description of how the marital debts and assets will be allocated between the two parties. If there is an ongoing support obligation between the parties, that will also be detailed in the Marital Settlement Agreement.
If the parties share any children together who are below the age of 18, the Judgment For Dissolution Of Marriage will also incorporate an Allocation of Parenting Time and Parental Responsibilities.
The Allocation of Parenting Time and Parental Responsibilities details who will spend what time with the children and which parent will be responsible for what aspects of the children’s lives.
The reason there are separate documents and not just one set of divorce papers are twofold: 1) For the sake of family harmony post-divorce, financial matters and matters related to the children are kept completely separate, 2) The Judgment of Dissolution Of Marriage is an order while the Marital Settlement Agreement and the Allocation of Parenting Time and Parental Responsibilities are contracts.
“The provisions of a [marital] settlement agreement are to be interpreted by normal contract rules.” In re Marriage of Kloster, 469 NE 2d 381 – Ill: Appellate Court, 2nd Dist. 1984
All of these documents must finally be approved by an Illinois divorce judge.
“The terms of the agreement, except those providing for the support and parental responsibility allocation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the agreement is unconscionable.” 750 ILCS 5/502(b)
“Agreements regarding the disposition of property and maintenance are binding upon the court unless they are found to be unconscionable.” In re Marriage of Hightower, 358 Ill. App. 3d 165, 171 (2005)
Judges give stricter scrutiny to the Allocation of Parenting Time and Parental Responsibilities (also knowns as a parenting plan) than they do a Marital Settlement Agreement.
“The agreement is binding upon the court unless it finds, after considering the circumstances of the parties and any other relevant evidence produced by the parties, that the agreement is not in the best interests of the child.” 750 ILCS 5/602.10(d)
The written agreement is what matters. Anything that is said outside the written agreement is irrelevant if the written agreement says otherwise.
“The terms of the agreement incorporated into the judgment are binding if there is any conflict between the terms of the agreement and any testimony made at an uncontested prove-up hearing on the grounds or the substance of the agreement.” 750 ILCS 5/502(b)
A signature is necessary is for these Illinois divorce contracts to be enforceable.
“The law is clear in Illinois that where the parties reduce the agreement to writing and its signature by them is a condition precedent to its completion, no contract will exist until that is done.” Lynge v. Kunstmann, 418 NE 2d 1140 – Ill: Appellate Court, 2nd Dist. 1981
What Happens When A Spouse Won’t Provide A Signature To An Illinois Divorce?
If a spouse will not sign the final divorce documents, you cannot get divorced in Illinois unless you default that spouse.
The spouse served with the summons then has 30 days to file their appearance in the matter.
“[T]he summons shall recite that petitioner has commenced suit for dissolution of marriage or legal separation and shall require the respondent to file his or her appearance not later than 30 days from the day the summons is served and to plead to the petitioner’s petition within 30 days from the day the petition is filed.” 750 ILCS 5/411
Failure to file an appearance will allow the spouse who filed the petition to proceed on a motion to default the other spouse.
A motion for default will result in a default order declaring the Respondent “in default.” The Petitioner must alert the defaulted spouse as to their defaulted status.
“Notice of entry of default order. (a) Upon the entry of an order of default, the attorney for the moving party shall immediately give notice thereof to each party who has appeared, against whom the order was entered, or such party’s attorney of record. However, the failure of the attorney to give the notice does not impair the force, validity or effect of the order.” 735 ILCS 5/2-1302
After the spouse is defaulted, the Petitioner can then proceed on a default judgment of dissolution of marriage. No signature is required for a default judgment for dissolution of marriage but the allegations must still be proven via testimony.
“Judgment by default may be entered for want of an appearance, or for failure to plead, but the court may in either case, require proof of the allegations of the pleadings upon which relief is sought.” 735 ILCS 5/2-1301(d)
The allegations in a Petitioner’s Petition For Dissolution Of Marriage may be extreme. The Petitioner can ask the court for full custody of the children, all of the assets, none of the debts, maintenance/child support for themselves and no obligation to pay maintenance to the defaulted spouse. If the Respondent is not there to counter any of that testimony, the court is likely to grant the Petitioner’s requests in a final order.
Of course, good luck getting a spouse who wouldn’t even sign an agreement to cooperate with a default judgment of dissolution of marriage. Default judgments will always be followed by years of contempt petitions in order to secure enforcement of the terms of that default judgment.
It’s hard enough to get along with your spouse when you are married. Imagine how difficult it will be when you are divorced. Make sure you and your spouse are clear as to the terms of a final agreement and get them to commit to that agreement with a signature. Contact my Chicago, Illinois family law firm to learn more about how to come to a binding agreement with your spouse that works for you, your spouse and your children.