In today’s economic environment many families facing divorce are looking to resolve their differences in the most efficient manner, both time wise and cost wise. Sometimes, that means they should focus on conflict resolution through mediation and negotiation as opposed to litigation.
There are several ways to proceed in an uncontested manner. Many cases are uncontested because the other spouse cannot be found or because he or she chooses not to participate in the proceeding. Such cases are so called “publication” cases or cases handled as a “default.” When both parties participate in the proceeding or are available, they may choose not to litigate their divorce but work amicably, with the help of an attorney or a mediator, to resolve it.
Divorce by publication
Divorce by publication is available where the other spouse cannot be found. In such cases, a notice of the divorce proceeding must be published in a court-approved newspaper and must circulate for at least three consecutive weeks. If the other spouse does not resurface within one month from the first notice, the other spouse may petition the court to enter a default judgment. The problem with a default divorce judgments is that although fast, they cannot allocate marital property or grant the participant spouse spousal or child support. Such issues are reserved by the court until the time the other spouse appears and is personally served and summoned to the court. In addition, the petitioning spouse must certify that the other spouse is not in the military service in order to prevent divorces of persons in the military without their knowledge.
Default Judgment of Divorce
Divorce by “default” can be obtained where the other spouse has been personally served with summons but chooses not to participate in the court proceedings. At least one month must elapse from the date of service until the time that the spouse can petition the court to find the other spouse in default (Supreme Court Rule 181). The petitioning party must bring a motion for a default before the judge and give notice to the other spouse when and where such motion will be heard. Your motion may be granted and divorce may be entered the same day. However, you should know that Illinois law allows such “default judgments” be vacated should the other spouse appear in court (735 ILCS 5/2-1301). No reason or excuse is required for failure to participate if the an absentee party comes to court within a specified time. Therefore, you may think you are divorced only to find that you have to go back to court and start the process over.
Uncontested divorce when both parties participate
Even where both spouses are involved in the divorce, the Illinois law favors agreements between the parties. If the parties can come up with an agreement of their own, the court will enter the agreement as a divorce judgment unless it finds the agreement so one sided that no person in the right mind would agree to it. (750 ILCS 5/502).
Therefore, in an uncontested case, most of your time will be consumed by negotiation, drafting, and revisions of your agreement. Both of you must exchange all financial information about your income, assets, expenses, and debts. To help in the process, one spouse may retain an attorney, each party may retain their own attorney, or the parties may choose a mediator, who will act as a facilitator of necessary financial disclosures and agreement negotiation.
If you choose mediation
The process forgoes traditional litigation and adversary process. Instead of two attorneys for each spouse, the spouses choose one mediator who helps the parties reach a mutually acceptable agreement (or in cases involving children – two agreements, one about the finances and another about the children) and put the terms in a final written form.
Once the agreement is prepared, the parties need to select an attorney (although many mediators are also experienced attorneys they cannot represent either party in court because of the conflict of interest) who will file the case with the court and will schedule and then conduct so called prove-up, a final hearing before the judge.
Many attorneys offer a flat fee service for such cases. Depending on the judge’s court docket and available schedule such cases may take as little as one or two weeks from the time of the filling to the time of your actual divorce. For instance, in Cook county and Dupage county court, if you have all your agreements ready, the court clerk will schedule your case as little as one week out from the time of the date of filling.
One attorney vs. an attorney for each spouse
You must know that unlike the real estate sale by the spouses or estate planning matters one attorney cannot represent both spouses in a divorce action. Therefore, even if both spouses agree to divorce amicably and only need someone to review and prepare an agreement, that attorney will speak from the side of the spouse who retains him or her.
Many spouses choose this option to save on attorneys fees. This option usually works well in cases where the marriage is of short duration, with few assets to divide and no children. Even in such cases, the spouse who is in a more vulnerable position should be the attorney-retaining spouse. This way, the attorney will be able to safeguard against power-play or differing levels of financial or legal information and sophistication of each spouse. In all instances, it is advisable for each spouse to retain a separate attorney. In many cases, even the uncontested cases are resolved faster if two attorneys are involved. What may take one week for the unrepresented spouse may only take a day for an attorney, such as document review and revision, and exchange of all the necessary information.
The timeline of this kind of divorce is similar to the one with mediation. Most of the time again will be consumed by the exchange of financial information and agreement negotiation and preparation. The difference is that your case will most likely start from the filling of the Petition with the court and the case will be immediately in the court system as opposed to only reaching the system when your agreement is ready. When the case is in the court system, it ultimately may be a settlement facilitator because the courts operate within clearly established time guidelines. For example, the initial mandatory financial information exchange must occur within 30 days of the case being filed (Cook County Rule 13.3.1, Dupage County Rule 15.05.1).
A custody dispute, for example, must be resolved within 18 months (Illinois Supreme Court Rule 922). To that end, if the parties are not able to reach a custody arrangement within 90 days, the court will refer them to the mandatory mediation (Supreme Court Rule 923). Cook county has a free mediation service (located at 69 W. Washington), as well as Dupage county offers same in parentage cases, however, due to a high number of cases referred to county mediators, once sent to mediation your case may be scheduled as far as two or three months later and your mediation may have to extend over the span of the next six months. Private mediation is often suggested to speed up the process.
If you choose separate attorneys
It is most important that you choose an attorney who will have the same mind-set and attitude to your case as you do. If you anticipate that the case will take pushing and prodding of your spouse who may not be willing to cooperate, it is important that you choose an attorney who is well-versed in procedural aspects of the Illinois law as well as a person of high-energy and high-organization. Sometimes, attorneys have a reputation of being great litigators. If you are however anticipating an amicable resolution of your case, you may want to retain an attorney who is focused on settlement and negotiation as opposed to litigation.
