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Starting an Illinois Divorce / Who Files, Obtaining Service, etc.
Law Firm, P.C., Woodstock, Illinois © 2013
A:In traditional adversarial divorce cases the answer is that it generally does not matter a great deal who files for divorce first. The person who files a divorce case is known as the Plaintiff (or the Petitioner in Cook County). The other spouse is known as the Defendant (or the Respondent in Cook County). Statistics indicate that 95% of divorce or family law cases are settled rather than tried (although for some lawyers the statistics are skewed quite significantly). The differences for a case that is settled are: 1) which party is going to have to allege grounds against the other; 2) the amount of filing fees which is relatively nominal; 3) the fact that the Plaintiff must serve the petition for divorce against her or his spouse (see below); and 4) the fact that it is required that the Plaintiff (the person who files) appear in court for the final court appearance (called a prove-up). I have found that none of these factors is generally consequential. Who files first can be of some consequence is if a case is tried. The Plaintiff will have the opportunity to present evidence first in the event of trial. Some lawyers believe this is a significant advantage. I believe that this is an exaggeration. There may be a small advantage to filing first in the event of a trial, but the advantage is not substantial.
Q:I have heard the term petition for dissolution of marriage. Is this the same as a petition for divorce?
Q:I have heard something about service. It is possible to avoid having my spouse served? He has stated that he will hire a lawyer and does not wish to be formally served.
A:Yes, it is often possible to avoid service. This is done by the other spouses lawyer voluntarily filing an appearance and a response to the petition for divorce. In the counties where I practice such as McHenry County, Lake County and Kane County, often lawyers will try to be courteous and will contact the other lawyer to determine whether he or she will takes steps to avoid the necessity of service of summons. You should follow the recommendations of your lawyer in this regard, however. The only thing which starts the time clock ticking in a divorce case – formally requiring the other spouse to take action – is service of the petition for divorce and summons. I have also been involved in cases where a spouse tries to avoid getting served. There are things that can be done if a spouse does try to avoid service. Therefore, the decision of whether to take a cooperative approach and send a copy of the petition for dissolution of marriage to the opposing counsel is usually made based upon whether or not the spouse may try to avoid service if he or she is first informed of the divorce filing. A disadvantage of the approach of sending a copy of the petition for dissolution to the presumed opposing counsel is that it is quite possible that this lawyer may turn out not to be the lawyer chosen.
Q:How much time will my spouse have after service of summons and the divorce petition (petition for dissolution of marriage) to file hire a lawyer or to take some official court action?
A:A person has 30 days from the date of the service of the summons to file a response to the petition for dissolution of marriage. Within this time period, unless there is an emergency usually no orders are entered by the divorce court. (Note that this does not apply to domestic violence petitions and the like). If the opposing party has not filed a response to the petition for dissolution of marriage within 30 days of being properly served, then a motion for default can be filed. Keep in mind, however, that a default order can be set aside for good cause shown within 30 days of its entry.
Q:What about collaborative divorce? Does a collaborative divorce in Illinois start off with the filing of a divorce petition?
A:In a collaborative divorce in Illinois under the procedures followed by The Gitlin Law Firm the spouses do not initially file for divorce. In this way, no funds are incurred by either spouse for their lawyer to attend required court appearances such as "case management conferences." In collaborative divorce, the spouses wait until they reach a written settlement agreement. Then one person files the divorce petition. In such cases there is an agreement between the spouses as to which party shall be the "Plaintiff." In collaborative cases the divorcing spouses agree to the grounds that will be stated in the petition.
The Gitlin Law Firm, P.C., provides the above information as a service to potential and current clients. A person's accessing the information contained in this web site, is not considered as retaining The Gitlin Law Firm for any case nor is it considered as providing legal advice. The Gitlin Law Firm cannot guarantee the outcome of any case.
The Gitlin Law
Gitlin Law Firm, P.C.
Updated: April 23, 2013
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