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Whether or Not to Hire a Divorce Attorney

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Deciding that it is time for a divorce is a major step and the way you go about filing for divorce can have an impact on you, your spouse, your children, and your families.  In most cases of divorce, both parties hire a divorce attorney to protect their rights and provide legal guidance throughout the process.

However, many divorcing couples may be hesitant to hire attorneys for several reasons, including the cost of an attorney and the stress it can add to the situation.  It is common for divorcing couples to wonder if the divorce proceeding can be done without an attorney, and in Illinois, there are a few different ways it can happen.  You can file for a no-fault divorce, or an uncontested divorce, which does not require the assistance of an attorney, or work with a divorce mediator.


Deciding Whether to Use a Divorce Attorney

Keep in mind that if you choose to go through your divorce without divorce lawyers, there are certain conditions that must be met for the proceedings to go smoothly.  If any points of contention come up during the divorce proceeding, you may need the help of an attorney to resolve them.  Before you decide to go through the divorce without one, make sure you and your spouse meet the following conditions:

  • Both Parties Want a Divorce:

    This is a necessary condition for a divorce to occur without attorneys. If one spouse wants a divorce and the other does not, the spouse filing for divorce will need an attorney to serve the proper divorce papers to the unwilling spouse.  The divorce process will go much smoother without attorneys if both spouses agree to divorce.

  • Both Parties Must be Active in the Proceeding:

    Whether you are filing for a no-fault divorce or using a mediator, both parties must be ready and willing to participate in the process. Both spouses will be expected to complete certain tasks and compile financial documents that are necessary for the divorce process.  If one spouse does not do the work or provide the necessary documents, the other spouse will have to hire a divorce lawyer to make sure all parties comply.

  • Both Parties Must be Willing and Able to Make Decisions:

    It is much easier to get through a divorce without attorneys if both parties are of sound mind and able to make major decisions competently. If one party is mentally incapacitated or consistently under the influence of drugs or alcohol, that person is not in a condition to make sound decisions on their own.  These situations need a divorce attorney to ensure that the settlement agreement is not rejected by the courts, or that the impaired party does not challenge the outcome in the future.

  • Both Parties Must Agree to Full Disclosure of Assets and Liabilities:

    An open and honest dialogue between the divorcing spouses is crucial for the divorce to occur without an attorney. This includes full disclosure of all financial assets and liabilities.  If one spouse does not comply, a lawyer will be needed to subpoena the necessary financial documents.


No-Fault Divorce (Uncontested Divorce)

A no-fault divorce, or an uncontested divorce, is a divorce proceeding allowed in Illinois in which neither spouse is accusing the other of wrongdoing that ended the marriage.  For a no-fault divorce to happen, there cannot be any legal opposition to the divorce from either spouse during the proceedings.  However, a spouse can still contest certain conditions of the divorce agreement such as property division or child custody in a no-fault divorce.  Therefore, a no-fault divorce is not always an uncontested divorce.

The State of Illinois does have a few residency requirements that must be met in order for a couple to file for a no-fault divorce.  If both spouses agree to the divorce in writing, they must live apart for at least 6 months before filing for a divorce.  If just one spouse wants to file for a no-fault divorce, the couple must live apart for 2 years.

The no-fault divorce process in Illinois consists of the following phases:

Filing the Petition for Dissolution of Marriage

To begin the divorce process, you must go to your local Circuit Court and file the Petition for Dissolution of Marriage.  The forms may differ between counties, which is why you must go to your nearest Circuit Court.  After the petition is filed, it is served to the other spouse by the county sheriff or a private process server.  The other spouse also has the option of filing their papers individually.  Once the petition has been filed and both parties have submitted the necessary forms, the divorce proceeding will begin.Should-I-Hire-a-Lawyer-for-Divorce

Temporary Phase

The temporary phase is the time period immediately after the petition is filed in which any issues are resolved temporarily before the proceedings begin in earnest.  These issues are typically dealt with informally by the spouses themselves.  Some cases, such as those involving a restraining order due to domestic violence, may require an attorney.  If a spouse is not a threat to harm the other spouse or children, then that spouse is not legally required to leave their living situation.

Discovery Phase

The discovery phase is where the contested issues come into play.  Contested issues may include anything from assets and property division to child custody.  Divorcing couples that have very little to contest can skip this phase by waiving their right to formal discovery.  In most cases, spouses may submit formal discovery requests for financial documents so they can be sure of the assets, property, and debt of the other spouse.

Determining child custody is a major part of the discovery phase for divorcing couples with children.  Both spouses must come up with a child custody agreement during this phase, and if they are choosing to go through the process without a divorce attorney, they may need to work with a mediator or a “Guardian Aid” who is appointed by the court to work in the best interest of the children.

The discovery phase will vary widely from case to case as couples with little assets and no children can practically skip this phase while couples with children may spend the most time in this phase.

Resolution Phase

In most cases, both parties agree on a settlement in the resolution phase that is reached through compromise.  Once a settlement is reached, both spouses must prepare and sign the settlement documents and appear in front of a judge for a brief hearing.  The judge will approve the settlement if it is deemed fair, and on rare occasions, the judge may deem the settlement unfair to one spouse and reject it.  When this occurs, the case goes to trial without a jury and the judge will make decisions regarding property division and child custody based on the evidence and documents gathered in the discovery phase.  The entire divorce process can be completed in several months if there is little contention and the judge approves the settlement.

Divorce Mediation in Illinois

If couples filing for a no-fault divorce in Illinois want a third party to help settle the divorce without hiring a lawyer, they can hire a divorce mediator.  The divorce mediation process consists of the following steps:

  • Both spouses must agree to mediate the divorce. In Illinois, you can only go through the divorce mediation process if both spouses agree to it.
  • Choose a professional divorce mediator who will work well with you and your spouse.
  • After choosing a mediator, you and your spouse will have to provide the mediator with forms, financial information, and other important documents for the discovery phase.
  • The mediator will review the documents gathered in the discovery phase and schedule meetings with you and your spouse to discuss the settlement.
  • During these meetings, the mediator will work through contested issues such as child custody and property division with the couple to help resolve these issues peacefully. In some cases, it may take several sessions to fully resolve these issues.
  • The mediator will record all agreements in a document called the Memorandum of Understanding (MOU).
  • Once you have completed the mediation and obtained the MOU document from the mediator, you and your spouse can file for a no-fault divorce without attorneys.


Work with a Divorce Attorney

Divorce can be a long, highly stressful process for all involved, and going through the process without divorce attorneys can help save some time and money.  When filing for divorce in Illinois, couples have the option of filing no-fault divorces, which does not require spouses to hire divorce lawyers.  However, the situation must meet several important criteria for the process to go smoothly without a lawyer.

If you are going through a divorce in Cook County and would prefer representation from an experienced divorce attorney, contact Berry K. Tucker & Associates, Ltd.  Our divorce lawyers have years of experience dealing with matters of divorce including property division, child support, domestic violence and other areas regarding family law.

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