Sometimes a marriage is over way before the marriage is officially over. One day your estranged spouse will hand you proposed divorce papers to sign or you’ll be served with divorce papers months or years after you have already split up and divided everything.
Is it worth contesting an Illinois divorce under these circumstances? Maybe the divorce is worth contesting…maybe the divorce is NOT worth contesting. It depends on what is at stake in your Illinois divorce.
An Illinois divorce usually addresses 4 major issues: 1) Custody, 2) Child Support, 3) Division of Debts and Assets and 4) Maintenance (formerly known as alimony). To not contest any of these issues means that your spouse will get what they want on each of these points…unless you contest them.
There are two ways your spouse can get an uncontested divorce from you: 1) A divorce by default or 2) Your signing an appearance and the final divorce documents.
Allowing Yourself To Be Defaulted In An Illinois Divorce
If you are served with a Petition For Dissolution Of Marriage and an accompanying Summons, you have 30 days within which to file an answer and let the Illinois divorce court know that yes, you intend to participate in the divorce legal process.
“When the summons requires appearance within 30 days after service, exclusive of the day of service (see Rule 101(d) ), the 30-day period shall be computed from the day the copy of the summons is left with the person designated by law and not from the day a copy is mailed, in case mailing is also required. The defendant may make his or her appearance by filing a motion within the 30-day period, in which instance an answer or another appropriate motion shall be filed within the time the court directs in the order disposing of the motion. Ill. S. Ct. R. 181(a)
“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 divorce will then proceed with you knowing nothing about what your spouse is requesting or what the court will award them.
Your spouse may claim that you are a millionaire, thereby allowing the court to award your spouse assets and support you may not even not have. Without your input during the divorce case, the court’s only evidence is your spouse’s testimony.
Your spouse may claim that you are an unfit parent who deserves no parenting time. You will then be denied parenting time and will have to prove yourself worthy of parenting time in the future despite any actual parenting time you have exercised in the past.
If you, later, find out that your spouse has made unreasonable requests and the court has entered an order not based in reality, you still have 30 days after the entry of that order to file a motion to vacate apprising the court as to what the facts really are and what the order should command both parties to the divorce.
“The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable.” 735 ILCS 5/1-1301(e)
Being defaulted in an Illinois divorce is almost always a terrible idea. You should always at least know what’s happening to you during an Illinois lawsuit where you are the Respondent/Defendant.
Signing Uncontested Divorce Documents In Illinois
Hopefully, your spouse will do you the bare courtesy of preparing divorce documents for you to sign. It is both cheaper and easier for your spouse to prepare agreed uncontested documents than to serve, default and then enter a judgment based on testimony alone.
Agreeing to the terms of your spouse’s filed divorce is referred to as an “uncontested divorce”.
An uncontested divorce is “a divorce that is unopposed by the spouse that did not initiate it.” Black’s Law Dictionary (11th ed. 2019)
Signing uncontested final divorce documents may be reasonable…if you know your rights.
Illinois divorce courts “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503(d)
In Illinois, there is a presumption that you can receive guidelines maintenance (formerly known as alimony) from your spouse if they earn at least 1.5 times what you earn.
“Maintenance…shall be calculated by taking 33 1/3% of the payor’s net annual income minus 25% of the payee’s net annual income. The amount calculated as maintenance, however, when added to the net income of the payee, shall not result in the payee receiving an amount that is in excess of 40% of the combined net income of the parties.” 750 ILCS 5/503(b-1)(1)(A)
The period of awarded guidelines maintenance is short if the marriage was short. Furthermore, if you have been separated and unsupported by your spouse for a significant amount of time, you can expect an Illinois divorce court to decide that you no longer have a need for maintenance.
“Any non-guidelines award of maintenance shall be made after the court’s consideration of all relevant factors [such as]…the needs of each party.” 750 ILCS 5/503(b-1)(2)
Likewise, child support is established by inputing both parties incomes into a guidelines child support calculation. The amount of child support must be accurate…unless the parties are agreed on the amount of child support.
Illinois divorce courts love it when the parties to a divorce are in agreement.
“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” 750 ILCS 5/502(a)
“A court should not set aside a settlement agreement merely because one party has second thoughts.” In re Marriage of Hamm-Smith, 261 Ill. App. 3d 209, 214 (Ill. App. Ct. 1994)
“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)
“[N]early all maintenance awards are implicitly reviewable and modifiable.” In re Marriage of Watson, No. 2-21-0137, 10 (Ill. App. Ct. 2022)
“Parenting time may be modified at any time, without a showing of serious endangerment, upon a showing of changed circumstances that necessitates modification to serve the best interests of the child.” 750 ILCS 5/610.5(a)
Going to court to modify an existing court order, however, is often more difficult than fighting an initial court order.
Any agreement regarding the division of debts and assets will very likely be permanent.
“Property provisions of an agreement are never modifiable.” 750 ILCS 5/502(f)
You Do Not Know What You Do Not Know In An Illinois Divorce
When you divorce someone, one of the first things you find out is how little you actually know about your spouse.
Without consulting with an experienced Illinois divorce lawyer, you cannot know what your rights are as to your children, your assets and your income.
Illinois is neither a 50/50 state for custody, property division, or support. The multitude of laws that affect these matters are contained in the statute, case law and various procedural rules established by the Illinois Supreme Court and the local Trial Court supervising your divorce case. You cannot be expected to know these rules. Only a lawyer who is competent can adequately explain your rights during the Illinois divorce process.
“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Ill. Sup. Ct. R. 1.1
In order to know what laws even apply to your Illinois divorce, you must know what facts can be applied to those laws.
Knowing all the relevant facts about your spouse requires that you verify those facts from your spouse and from third party sources who hold the information you need.
“Information is obtainable as provided in these rules through any of the following discovery methods: depositions upon oral examination or written questions, written interrogatories to parties, discovery of documents, objects or tangible things, inspection of real estate, requests to admit and physical and mental examination of persons.” Ill. Sup. Ct. R. 201(a)
At some point, it is impossible to know everything about your spouse in order to form the perfect divorce settlement. In my experience, just a few pointed questions can clear about 80% of the possibly opaque issues.
What Happens If I Don’t Sign The Divorce Papers In An Illinois Divorce?
You do not have to agree to your spouse’s proposed divorce terms. You can file an Appearance indicating that you wish to participate in your divorce and an Answer to the Petition for Dissolution of Marriage. At this point the divorce will be contested…or at least appear to be contested.
A contested divorce is “a divorce that one spouse opposes in court, a divorce in which the spouses litigate, in this sense, although both spouses may want the divorce, they disagree on the terms of the divorce decree” Black’s Law Dictionary (11th ed. 2019)
Not much more will be required of you as the Respondent in an Illinois divorce.
You are supposed to fill out and file a 10-page financial affidavit within 30 days of filing your Appearance.
The opposing side may issue discovery which you will have to answer.
Over the course of the course of this process, I assure you that the final divorce papers you were offered will change. Especially, if you negotiate even a little.
In a pretrial, a judge will specifically ask you what you want to change in the final proposed divorce documents. The judge will then ask the other side why they cannot accommodate your request (if it is reasonable).
Finally, if you cannot come to an agreement, the court will order a trial. The other side can only request relief they are entitled to under law based on the facts properly presented as evidence. If the opposing side can neither present the law or the evidence correctly, they will not receive the relief they are requesting.
If you can effectively present your evidence and communicate the law which should be applied to that evidence in a logical, persuasive manner the judge should enter a Judgment For Dissolution of Marriage which includes the terms you were seeking.
But, boy, does it ever take a lot of time, money and expertise to get there.
I am not opposed to merely signing a Marital Settlement Agreement and/or Allocation of Parenting Time and Parental Responsibilities that contains 90% of what you want/need. Everything has trade-offs. It is just important to know what those trade-offs are.
I am a divorce lawyer so, like a carpenter carrying a hammer, to me everything looks like a nail.
I think a divorce lawyer should look at every divorce document before someone signs the document and waives all their rights in exchange for some modicum of certainty.
If you would like me or my staff to review the proposed divorce settlement your spouse or your spouse’s attorney sent you, please contact me so we can arrange a meeting to go over those documents (this is actual work and will not fall under a free consultation).
You will feel better after having an experienced Illinois divorce lawyer review the final proposed documents whether you sign those documents or not.