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Can I Still Get A Divorce During COVID Shutdown?

The COVID-19 pandemic has disrupted everyone’s lives even those that may want to get a divorce during COVID shutdown. Many once-normal activities are now impossible. But even through a pandemic, the legal system must continue to function, albeit under new restrictions and policies that emphasize protecting public health.

A question we have been getting for months now is, “Can I still file for divorce during COVID?” This may sound to some like a strange question. Given everything going on, is divorce really a priority? The truth is that if you are trapped in a failing or failed marriage, the pandemic does not change that reality. If anything, being forced to remain together in lockdown may only exacerbate existing problems and make divorce even more of an imperative.

Fortunately, you can still get a divorce in Illinois despite COVID. Most of the actual legal process involved in divorce can be handled online and remotely without the need to physically appear in court. Indeed, if the divorce is uncontested and both sides have already resolved any key issues, obtaining the actual divorce may actually be quicker than it would have been before the pandemic.

Are the Courts Currently Open?

During the initial weeks of the COVID-19 pandemic, Illinois court officials moved to put certain contingency procedures in place. In May 2020, the Illinois Supreme Court issued an administrative order authorizing the chief judges in each judicial circuit to continue–delay–trials as necessary. Of course, criminal trials still must take priority, as all defendants have a constitutional right to a “speedy trial.” But civil trials, such as those involving divorce, are not considered a high priority.

Here in DuPage County, the 18th Judicial Circuit issued its most recent continuance order in late January 2021. Under that order, local courts may not, until further notice, conduct any in-person trials or extended hearings in domestic relations matters unless the judge hearing the case finds there is an “exigent matter” requiring immediate attention. Exigent matters can include certain divorce-related matters such as “parenting issues or economic issues,” provided that any failure to resolve such questions immediately would “cause irreparable harm to the parties or marital estate.”

The upshot of all this is that if you are involved in a contested divorce and there are no exigent matters, you may find yourself waiting several months to appear in front of a judge. Even then, it may be a virtual or remote hearing, depending on the status of the pandemic and the availability of the courts. But if your divorce is uncontested and you and your estranged spouse can resolve any major issues out of court, these measures will not have as much of an impact on your final divorce.

Filing for Divorce During COVID

Again, it is important to emphasize that in-person trials are not necessary in most Illinois divorce cases. Divorce, like most legal proceedings, is primarily a matter of filing paperwork. And this can be done remotely without the need for the parties to visit their local courthouse personally.

Before filing for divorce, you need to meet certain legal requirements. In general, at least one spouse must be a resident of Illinois for at least 90 days prior to any filing. A petition for divorce must then be filed in the Illinois county where either spouse resides. If you have children, they must also be residents of Illinois for at least 6 months.

A divorce petition may either be fault or no-fault. A fault-based divorce means one spouse alleges that the other spouse has engaged in misconduct that led to the breakdown of the marriage, such as adultery. A no-fault divorce only requires that the spouses are unable to sustain their marriage due to “irreconcilable differences.” In most cases, if the parties have already lived separate and apart for six months, that is considered sufficient proof of irreconcilable differences.

A formal Petition for Dissolution of Marriage must be filed with the appropriate Illinois circuit court. The petitioner–the spouse filing for divorce–must also complete a legal summons, which notifies the other spouse that divorce proceedings have begun. The petition is the legal document that gives the court jurisdiction to hear your case and issue a legal order dissolving the marriage. These forms can–and due to COVID-19 should–be completed and filed remotely.

It is important to work with a qualified Naperville divorce lawyer during this process. One reason for this is that a divorce petition and other documents pertaining to such cases often contain highly sensitive information. It is therefore critical that certain protocols are observed with respect to the use of email and other technologies to protect such information from accidental public disclosure.

Alternatives to Trial

As we have said, trial dates for Illinois divorce cases are currently at a premium due to COVID-19 restrictions. When a trial is possible, it will likely take the form of a telephone or video conference. If you do not want your divorce resolved in a Zoom call with a judge, you need to consider other alternatives for resolving outstanding issues with your spouse.

For example, even during non-pandemic times, there are many divorces resolved through mediation. In mediation, a trained third party assists the parties to a divorce in reaching an agreement about subjects such as property division and parenting time with children. The mediator does not represent either party. Nor is mediation the same thing as arbitration. In arbitration, the third party resolves the dispute if no agreement is possible; a mediator, in contrast, is not empowered to impose a resolution on anyone.

There are actually many different types of divorce-related mediation. Sometimes the mediator acts as a “go-between” relaying proposals between the parties. In other cases, the mediator may actually analyze each party’s case and advise them on what might happen if they ask a judge to decide the issue. Still other times, the mediator may meet together with both parties to facilitate face-to-face discussion (or virtual face-to-face discussion, as the case might be) without offering specific proposals.

Another alternative to mediation is a process known as collaborative law. This is essentially mediation without a mediator. In collaborative law, each spouse retains their own attorney who is specially trained in helping the parties reach an agreement. If any experts are required, say to help value marital assets, they are hired jointly. The idea is that everyone–spouses and lawyers–are working together to resolve outstanding issues and avoid the need for litigation. To that end, if either spouse decides to withdraw from the collaborative process, the attorneys must as well. This helps to ensure that the lawyers involved will not use the collaborative process as a tactic to gain an advantage in any potential litigation.

What If I Need to Go to Court?

Despite all of these options, there are some divorce cases that will still need to be heard and decided by a judge. Obviously, we cannot say with any certainty how long the current COVID-19 restrictions will remain in place. But for now, we can make the following observations:

  • Judges will continue to favor remote hearings whenever possible. Courts in DuPage and surrounding counties do have the capacity to conduct divorce trials via video conference. This can actually make a potential trial less stressful for all parties involved.
  • If you still need to be physically present in court for any reason, make sure you continue to follow all public health guidelines, e.g., use hand sanitizer, wear face coverings, and maintain a physical distance of at least 6 feet from other people while indoors.
  • Keep the number of people who need to be physically present in court at a minimum. This means keeping your minor children at home unless the judge absolutely requires their attendance.

What If I Cannot Move Out of the House Due to COVID?

Another issue that has come up in a number of cases is spouses who want to separate but are physically unable to do so due to COVID-19 restrictions. Could this affect your ability to get a divorce? In most cases, no. Illinois divorce law no longer requires parties to live separately before seeking a divorce. As noted above, when spouses live apart for at least 6 months, that can be considered as proof of irreconcilable differences for purposes of obtaining a no-fault divorce. But that does not mean the parties cannot agree to end their marriage while continuing to live together during the COVID-19 pandemic.

Contact a DuPage County Divorce Attorney Today

COVID-19 has placed a strain on all of our social relationships. Many already faltering marriages have understandably cracked under the strain. But there is light at the end of the tunnel. The current limitations on court proceedings should not keep you trapped in an untenable situation. If you are looking to end your marriage legally and need advice from an experienced Naperville divorce lawyer, contact Keller Legal Services today to schedule a consultation.