A lot of strategy in a divorce is about timing. For most people, they want to get divorced as quickly as possible. The sooner a divorce is over, the sooner your obligations to the marriage end. But, there are some situations where it may be strategic to delay or continue your divorce for the benefit of you, your children and even your soon-to-be-ex-spouse. So, how do you delay a divorce in Illinois?
An Important Warning About Delaying A Divorce In Illinois
All of the advice contained within this article only advocates for any strategy that creates a reasonable delay.
Unreasonable delay in an Illinois divorce is sanctionable.
“The signature of an attorney or party constitutes a certificate by him that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation” Illinois Supreme Court Rule 137(a)
A lawyer has a duty to move litigation forward NOT to delay litigation.
“A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.” Illinois Rule of Professional Conduct 3.2
“Even when the client’s interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer’s trustworthiness.” Illinois Rule of Professional Conduct 1.3, Comment 3
But, that doesn’t mean that a lawyer needs to deny his client’s best interests in the of expediency.
“A lawyer’s duty to act with reasonable promptness, however, does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer’s client” Illinois Rule of Professional Conduct 1.3, Comment 3
How To Reasonably Delay An Illinois Divorce Using Filing Deadlines
Any time something is filed in a divorce, the other party is given a reasonable amount of time to answer that filing.
The first filing in an Illinois divorce is the Petition for Dissolution of Marriage is filed. The Petition for Dissolution of Marriage is then given to a special process server who serves the Petition and a Summons on the Respondent.
Additionally, a child support obligation tolls from the date of filing a divorce not the date of service. The below statute is not very clear on this matter but that child support tolling from the filing date is the final effect.
“In a proceeding for child support following dissolution of the marriage or civil union by a court that lacked personal jurisdiction over the absent spouse, and in which the court is requiring payment of support for the period before the date an order for current support is entered, there is a rebuttable presumption that the obligor’s net income for the prior period was the same as his or her net income at the time the order for current support is entered.” 750 ILCS 5/505(a)(4.5)
After service of process, the Respondent then has 30 days to file their appearance and or answer to the Petition for Dissolution of Marriage.
“[T]he summons shall require each defendant to file his answer or otherwise file his appearance within 30 days after service, exclusive of the day of service” Illinois Supreme Court Rule 101(b)(3)
If you don’t file an appearance and/or answer, to the Petition For Dissolution Of Marriage, you will be defaulted and your soon-to-be-ex-spouse will get (almost) everything they ask for in their Petition.
But, if you wait 30 days before filing your appearance and answer, that will not be considered an unreasonable delay of your Illinois divorce case.
While your Illinois divorce progresses, there will be numerous other periods where you will be allotted time to answer motions for temporary relief. After the motion for temporary relief is filed, the court will allow a certain amount of time for you to reply to those motions. Typically, this is no opportunity for delay because the hearing is set on the same day the time to answer is set.
Information regarding issues in a divorce (mostly financial) is called “discovery.” Discovery will be exchanged between the parties to an Illinois divorce via discovery requests
Answering discovery in an Illinois divorce case has a deadline. “The request [for discovery] shall specify a reasonable time, which shall not be less than 28 days after service of the request except by agreement or by order of court” Illinois Supreme Court Rule 214(a)
Failure to respond to discovery will result in a motion to compel being filed in the court which will, obviously, take more time. A motion to compel which is granted can include an order to pay attorney’s fees because of the delay.
Even after discovery and temporary motions are complete, a trial date for your divorce could be months away depending on the case schedule of the judge you’re assigned to.
Delaying an Illinois case beyond the reasonable time deadlines provided by the Illinois court rules is a dangerous game and not one that I’d advise.
Ways To Delay An Illinois Divorce By Agreement
The ultimate way to delay a divorce by agreement is to simply dismiss the divorce case. The case can always be re-opened in the future with no overt penalty for having filed before in the past (this is common, actually).
Alternatively, the parties can agree to be put on the reconciliation calendar which puts the case on hold for up to a year in Cook County. “All cases on the reconciliation calendar shall be called for status within one year” Cook County Court Rules 13.2(g)(i)
Mediation between the parties can be a time-consuming process. Mediation is voluntary for financial issues and mandatory if the parties have children. “The court shall order mediation to assist the parents in formulating or modifying a parenting plan or in implementing a parenting plan unless the court determines that impediments to mediation exist. Costs under this subsection shall be allocated between the parties pursuant to the applicable statute or Supreme Court Rule.” 750 ILCS 5/602.10(c)
In my experience, mediation usually makes the overall case go faster as the issues in dispute are inevitably narrowed and suitable for presentation at a pretrial conference with the divorce judge…who will subsequently order trial.
If the parties have children and are in dispute in regards to the children, the parties will usually have to hire a third attorney, a Guardian Ad Litem, to represent the best interests of the child. The Guardian Ad Litem must investigate the situation by interviewing all the parties and the children and finally issuing a report of recommendations to the court. This process is usually incredibly time consuming…and expensive.
Why Would Someone Want To Delay A Divorce In Illinois?
Outside of the emotional reasons such as simply not wanting to lose their partner or not being mentally ready for a divorce, there a few strategic reasons to delay a divorce in Illinois.
- The Pending Death Of A Party To The Divorce.
If one party to the divorce may die, the divorce will be extinguished on the moment of that party’s death. All obligations to and from that party will also be extinguished.
The division of assets will follow probate law NOT divorce law.
In reality, when one party has an impending death, they can request to get a divorce on an almost emergency divorce by asking for a bifurcated divorce. That is, to have the divorce granted immediately reserving all the issues of the divorce for settlement through their estate.
Maintenance (formerly known as alimony) always has a period of time that maintenance is awarded for. This period of time is triggered by the filing date NOT the actual date of the divorce.
Maintenance “shall be calculated by…the length of the marriage at the time the action was commenced” 750 ILCS 5/504(b-1)(B)
So, delaying the date of final divorce judgment will not affect the length of maintenance.
But, if a pending retirement or loss of income is on the horizon, delaying the determination of the final amount of maintenance may be prudent.
- Income and Assets
“”[M]arital property” means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 5/603(a)
This means all assets brought into the marriage even assets earned during a divorce. If one spouse is getting a bonus or some kind of lump sum payment, the other spouse may desire to extend the divorce passed the date of that payment.
Some financial instrument, like a stock option, might mature before the divorce. While that financial instrument would have been marital property before maturation, it’s a lot less hassle to divide a fully vested and executed financial property.
- Child Issues
After age 18, the courts have no jurisdiction over parenting time and parenting responsibilities. The parties may individually, or by agreement, find that merely waiting to finalize their divorce until the youngest child turns 18 will completely eliminate a series of rules.
The parenting plans for children in their late teens are usually extremely vague and practically non-binding due to the difficulty in enforcing court orders on people who are on the verge of adulthood.
If you have a legitimate need for a delay in your Illinois divorce or you’d like to prevent a delay in your Illinois divorce, contact our Chicago, Illinois family law firm to speak with an experienced Chicago divorce lawyer.