A divorce happens in Illinois when a Judgment of Dissolution of Marriage is entered in the courts.
Judgment of Dissolution of Marriage
A judgment of dissolution of marriage always contains this clause: “The parties are awarded a Judgment of Dissolution of Marriage and the bonds of matrimony existing between Petitioner and Respondent are hereby dissolved.”
While this language officially divorces the parties there are still lots of other details that need to be resolved. Specifically, allocation of all the marital and non-marital assets and the parenting schedule (if there are children).
Typically, the judgment for dissolution of marriage will be very brief and then will incorporate all of these details via reference with the following language:
A. “The Marital Settlement Agreement entered between the parties herein above set forth, a copy of which is entered simultaneously, is incorporated herein as if set forth verbatim and all of its terms and provisions are hereby expressly affirmed, approved and adopted as the order and the Judgment of this Court;
B. The Agreed Allocation of Parental Responsibilities and Parenting Time entered between the parties herein above set forth, a copy of which is entered simultaneously, are incorporated herein as if set forth verbatim and all of its terms and provisions are hereby expressly affirmed, approved and adopted as the order and the Judgment of this Court;”
So, the judgment grants the divorce but the Marital Settlement Agreement and the Agreed Allocation of Parental Responsibilities and Parenting Time deal with all the details of the divorce.
Can You Get Divorced Before Resolving All The Financial And Parenting Issues?
You may want to get divorced in advance of resolving all of the issues related to your divorce. This usually occurs if there is a pressing need such as a pending death or pregnancy. This is called “bifurcation.”
Illinois courts allow for a divorce with reserved issues under the following conditions:
“Judgment shall not be entered unless, to the extent it has jurisdiction to do so, the court has considered, approved, reserved or made provision for the allocation of parental responsibilities, the support of any child of the marriage entitled to support, the maintenance of either spouse and the disposition of property. The court shall enter a judgment for dissolution that reserves any of these issues either upon (i) agreement of the parties, or (ii) motion of either party and a finding by the court that appropriate circumstances exist.” 750 ILCS 5/401(b)
Even if the reservation of issues is agreed, the court’s permission is still needed to reserve the matter. Typically, Cook County judges handle the post-judgment issues of the divorces they preside over. So, Cook County judges are inclined to not allow “loose ends” such as reserved issues that will just appear before the judge again in the future.
If the parties do not agree to bifurcate their case, one party needs to petition the court and show “appropriate circumstances exist” that warrant a bifurcation.
Illinois Courts have specified that “appropriate circumstances” can arise “where the court does not have in personam jurisdiction over the respondent; where a party is unable to pay child support or maintenance if so ordered; where the court has set aside an adequate fund for child support pursuant to section 503(d) of the Act; or where the parties’ child or children do not reside with either parent.” In re Marriage of Cohn, 93 Ill. 2d 190 (1982)
This definition is pretty narrow. It basically says bifurcation is only allowed when the other parent has disappeared completely.
In re Marriage of Blount, 197 Ill. App. 3d 816 (1990), created a new appropriate circumstance by allowing the bifurcation of a divorce of a terminally ill wife from her abusive husband. The court made special reference to the fact that they only allowed this because both parties had separate assets and a premarital agreement that essentially resolved their financial issues without the need for the immediate entry of a Marital Settlement Agreement.
More recently, courts have found that almost any pending death can be appropriate circumstances for the bifurcation of a divorce. In re Marriage of Breashears, 2016 IL App (1st)
Why Should A Divorce Be Sped Up or Bifurcated?
The reason why a pending death is so important as to allow a quick divorce is that the death of a party cancels a divorce and allocates the couple’s property pursuant to probate law.
Illinois probate law is completely different than divorce law and can cause one party to game the system as they extend the divorce so as to gain more from the probate laws.
Under Illinois divorce law, a spouse is entitled to and equitable division of the marital assets (usually half)
Under Illinois probate law, if there is a no will a spouse has the right to half of ALL of the deceased spouse’s assets. If the deceased has no children, the surviving spouse will receive all of the deceased spouse’s assets.
If there is a will in Illinois, the surviving spouse can always renounce the will (if they are written out of the will) and request, instead, 1/3 of the assets pursuant to statute.
How Do I Get Divorced Quickly Without Bifurcating My Divorce?
If you don’t bifurcate your divorce there are only two ways to finalize your divorce quickly: 1) come to a full settlement on all the terms or 2) take the matter to trial.
Coming to a full settlement requires a good faith negotiation between you and your spouse which usually requires a full disclosure of income and assets and (more importantly) a full agreement as to all parenting matters. It is not easy to come to a full agreement on all these matters when the parties are also dissolving their relationship.
Taking a matter to trial requires a full exchange of income and assets. This can be enormously costly and time consuming. But, for some cases, it can be done fairly easily by stipulating to all the facts and submitting proposed documents to the judge with those stipulations. Often, in a divorce, there is a disagreement regarding the results of the divorce but no disagreement as to the facts of the divorce.
In Cook County, you can request a pre-trial to apprise the judge of the facts of your case and get a recommendation from the judge as to how the judge would rule if you presented those same facts pursuant to the Illinois Rules of Evidence. Often, a full trial is pointless after a pre-trial and the parties will simply adopt the judge’s recommendations.
If you’d like to learn more about bifurcating a divorce, contact my Chicago law office to schedule a free consultation with an experienced Chicago divorce lawyer.