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DIVORCE
Joint Simplified Dissolution of Marriage
750 ILCS 5/451
Requirements
Both Parties Must Appear, and:
1. Neither party is dependent on the other for support or each party is willing to waive a right to support.
2. Either party has met the residency requirement.
3. Irreconcilable differences, six month separation.
4. No children were born of the relationship, no adoptions during the marriage and the wife is not, to her knowledge, pregnant.
5. At the time of filing, the marriage was of eight years or less in duration.
6. Neither party has an interest in real property.
7. Each party has waived any rights to maintenance.
8. All marital property has a fair market value of less than $10,000.00 after deducting encumbrances, the combined gross annual income from all sources less than $35,000,00 and neither spouse earns more than $20,000 per year.
9. Each party has fully disclosed all assets and tax returns to the other for all the years of the marriage.
10. Written agreement has been executed dividing all assets in excess of $100.00 in value, and responsibility has been allocated for debts and liability. The agreement cannot be unconscionable.
Procedure
750 ILCS 5/453
- Use forms provided by the court.
- File petition with the clerk.
- Both parties must appear before the court.
- File an affidavit at the hearing executed by both parties stating that all property has been divided in accordance with the agreement and that they have executed all necessary documents. (5/454)
Relief Available
Temporary Relief
750 ILCS 5/501
- Personal jurisdiction is required. Residency alone is not sufficient.
- Either party can move for temporary maintenance or temporary child support.
- Either party can move for a temporary restraining order or preliminary injunction for the following:
° Preventing other party from transferring, encumbering, concealing or otherwise disposing of any property.
° Preventing other party from removing a child from jurisdiction of the court.
° Preventing other party from striking or interfering with personal liberty of party or any child.
Dissolution Action Stay
750 ILCS 5/501.1
Either the service of a summons and petition or praecipe operates to stay against both parties and their agents until judgment is entered, the case dismissed, or further order the following:
- Transferring, encumbering, concealing, destroying, spending, damaging, or in any way disposing of any property without consent.
- Physically abusing, harassing, intimidating, striking, or interfering with the personal liberty of the other party or their children.
- Removing any minor child of either party from the state or from concealing a child from the other party.
A party needs personal jurisdiction to enforce a dissolution action stay.
Maintenance
Statute
750 ILCS 5/504, 510
Factors Considered
The court needs personal jurisdiction to order maintenance.
The court has discretion to order temporary or permanent maintenance to either spouse without regard to marital misconduct in an amount that takes into account a number of factors including the following:
- The income and property of each party
- Each party’s needs
- The present and future earning capacity of each party
- The standard of living established during the marriage
- Any impairment to present and future earning power due to devotion of time to domestic duties or foregoing education or training due to the marriage
- The duration of the marriage
- The age, physical and emotional condition of both parties, and
- as a practical matter most courts only award rehabilitative (time limited) maintenance in long term marriages.
Modification (of Maintenance)
Standard: To modify a judgment, the party must show a substantial change in circumstances. (5/510 (a))
Notice: Modification is effective only upon installments accruing after notice to other party. (5/510 (a))
Cessation: Unless otherwise agreed upon and incorporated in the judgment, an obligation to pay maintenance ceases upon the death of either party or the remarriage of the party receiving maintenance or if the party receiving maintenance cohabits with another person on a conjugal basis. (5/510 (c))
Procedure (In State): File a petition to modify maintenance in the judicial district where such judgment was entered with notice or summons to the respondent. If neither party remains in the judicial district, file in the district where the recipient of such support resides. (5/511 (a)). If payment is made to the clerk and neither party continues to reside in the judicial district, either party or the court itself can transfer collection to the clerk of the court in the other county. (5/511 (d)).
Procedure (Out of State): ss A modification action is commenced by filing a petition to enroll the judgment of the other state; attaching a copy of the judgment to the petition and providing notice of the filing to the clerk of the court where the judgment was entered or last modified. (5/511 (c)).
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(*taken from the Attorney Desk Reference Manual) |
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