Before 2016, Illinois law famously, or infamously, included a two-year waiting period. Very few people had to wait forty-eight months for a no-fault divorce, because some workarounds were available. For example, spouses could file fault-based divorces, citing issues like cruel treatment. Fault-based divorces, though often messy, were not subject to a waiting period. Nevertheless, some spouses had to wait longer than they should have to wait.
Then, the Illinois divorce laws changed. Some of these changes affected the emotional and financial issues in a divorce case. More on that below. These changes didn’t just alter divorce settlements. They also altered the way divorces started. Lawmakers ended most fault-based divorces and eliminated the two-year no-fault divorce waiting period. This change was not as sweeping as it sounds, since the divorce procedure was largely unaltered. However, the change did speed things up a bit.
Today, it’s almost impossible to determine the average length of a divorce in Illinois. You can Google this phrase and probably find a number. But the average length of a divorce is like the average length of a marriage. Some couples don’t make it to their first anniversaries and others are buried next to each other after many decades of wedded bliss. Similarly, your divorce could be final in the blink of an eye, or it could drag on for years.
So, a Naperville divorce lawyer cannot tell you how long your case will last. Anyone who says something different is either inexperienced or telling you what you want to hear. However, a Naperville divorce lawyer can guide you through the process and obtain a resolution that upholds your legal and financial rights. That’s all anyone can ask for.
The number of issues your divorce has, and the contentiousness of these issues, greatly affect the length of a marriage dissolution matter in DuPage County.
As mentioned, the 2016 “Modern Family” law introduced some changes in this area. Specifically, Illinois lawmakers replaced the state’s joint custody law with a co-parenting law.
Joint custody, an idea that began in California in the late 1970s, is usually referred to as joint legal custody. Both parents had certain rights and responsibilities, both in general and during their periods of possession. Joint custody was the successor to the antiquated tender year’s doctrine. This informal rule dictated that mothers always, or almost always, obtained full custody of the children, and fathers had limited if any, visitation rights.
Co-parenting is the next step forward. In joint custody states, and there are still quite a few of them, children “live” with one parent and “visit” the other one. But in Illinois, both parents must take an active child-rearing role, at least in most cases. Illinois law now contains a presumption that children benefit from frequent, consistent, and meaningful contact with both parents.
This presumption has prompted many Naperville divorce lawyers, and their clients, to re-think the traditional every other weekend and every other holiday parenting time division. This plan results in about a 70-30 parenting time division. In the eyes of many, that disproportionate division doesn’t fulfill the spirit of the new law. Some alternatives include:
What does all this have to do with the length of a divorce? The co-parenting presumption often means that child custody disputes are less divisive. Generally, unless there are serious health and safety questions, roughly equal timeshare is probably inevitable. As a result, there is less to fight about.
The 2016 law didn’t change much regarding property division and child support. But it made some seismic changes to spousal support provisions.
Illinois is an equitable distribution property state. In most cases, “equitable” is a 50-50 division. However, the judge has some discretion to order a disproportionate division in some cases. A disabled spouse, or a spouse with custody of a permanently disabled child, is the most common scenario. A spouse who gave up career advancement in order to be a full-time caregiver is a close second. However, in the latter case, the economic disparity often isn’t permanent.
Generally, a mathematical formula determines the amount of child support payments. Since Illinois is an income share state, the child support formula takes a number of factors into account, such as the parenting time division, the income of both spouses, and the number of children, including step-children, each spouse has a duty to support.
Once again, the judge has some discretion to deviate from the guidelines in some extreme cases. The aforementioned permanently disabled child is once again the most common scenario.
In contrast to these two areas, alimony changed a lot. Illinois followed the lead of some other alimony reform states. A mathematical formula, which considers the spouse’s income disparity and the length of the marriage, replaced the old factor-based amount and duration determinations, at least in most cases.
The streamlined alimony rules often shorten the length of divorce in DuPage County. Once again, there are free things to fight about in this area. Instead of arguing over factors that could favor either spouse and sorting through circumstantial evidence, judges simply plug numbers into a formula, and that’s that, at least in most cases.
Types of Divorces
Divorce issues have a lot to do with divorce length. The type of marriage dissolution has, even more, to do with the length of the legal proceedings.
These divorces are especially common if the marriage lasted less than two or three years and the couple had no children. Frequently, when these spouses separate, they immediately go their separate ways. They don’t wait for a court order to formalize their divorces.
Some spouses immediately file legal paperwork in these situations. However, it’s more common for a spouse to file months or years later. Frankly, when a spouse meets a potential marriage partner, the spouse quickly gets serious about obtaining a legal divorce.
When one spouse essentially abandons the marriage, that spouse also basically waives all rights to contest the divorce or the issues therein. Therefore, service of process, which is normally a formality, is usually the biggest issue in absentee spouse marriage dissolutions.
Illinois law requires personal service whenever possible. A filing spouse doesn’t have to hire a private investigator to track down a non-filing spouse. But, the spouse must show due diligence in this area. Basically, the filing spouse must try hard to locate and serve the non-filing spouse.
If the non-filing spouse is nowhere to be found, Illinois courts usually allow service by publication or posting. In both these situations, the notice must meet strict legal requirements, in terms of its content and the amount of time the notice remains public.
A few Illinois courts allow service via Facebook, Twitter, and other social media accounts. Nowadays, that’s arguably the best way to reach people in these situations. However, social media service is not widespread, mostly because of verifiability issues.
In this context, “agreed” is basically synonymous with “roll over and play dead.” The non-filing spouse immediately agrees to all divorce terms offered by the filing spouse. These divorces are not too unusual in no asset and no children cases. But such cases are few and far between.
The vast majority of the marriage dissolutions our Naperville divorce lawyers handle are uncontested divorces. Usually, the spouses agree on broad principles, like the property division must be equitable and the child custody orders must be in the best interests of the children. However, they disagree on specific terms. A lawsuit’s discovery process often resolves such disagreements.
During discovery, both spouses must place all their financial cards on the table. In some cases, that might simply be an exchange of recent tax returns and pay stubs. In other cases, especially if one spouse might be trying to conceal assets, financial discovery is incredibly complex.
Also during discovery, the judge usually appoints a social worker to investigate the matter. The social worker interviews everyone involved and does a little digging. Then, the social worker will submit a report that includes custody and visitation recommendations. Technically, these reports are non-binding. But most judges act as if these reports are binding.
If uncontested divorces remain unresolved as the trial date approaches, they usually go to mediation. Essentially, mediation is a court-supervised negotiation session. Both sides have an obligation to negotiate in good faith. As a result, family law mediation is about 90% successful.
A handful of divorces are contested marriage dissolutions. The two spouses are so far apart that nothing, not even an unaffiliated Naperville divorce lawyer who mediates the case, can bring them together. Since the case must go through the entire litigation process, and many parties must wait many months for a trial date, these divorces could easily last two years or longer. Bench trials resolve these cases. The judge serves as both legal referee and factfinder.
Work with a Compassionate DuPage County Divorce Lawyer
The length of a divorce varies, but it’s almost always longer than the parties originally estimated. For a free consultation with an experienced Naperville divorce attorney, contact Keller Legal Services by calling 630-505-1515. We routinely handle matters throughout Chicagoland.