An uncontested divorce in which both spouses are in agreement on all issues makes the process faster, easier and cheaper, but it’s not always possible. If a divorce is contested, it means spouses can’t agree on issues regarding child custody, child support, spousal support and the division of property.
Every divorce, whether contested or uncontested, starts with the filing of a Petition for Dissolution of Marriage and service of process on the spouse who didn’t file the petition.
Grounds for Divorce in Illinois
Illinois is a "no-fault" divorce state, making it difficult for one spouse to contest a divorce on the basis that the other spouse does not have grounds for divorce. On January 1, 2016, Illinois eliminated all "fault" grounds, such as infidelity and mental cruelty, from its divorce laws. This means that the only ground for divorce in Illinois is irreconcilable differences, which, according to Illinois law, "have caused the irretrievable breakdown of the marriage and the court determines that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family."
Reasons for Contesting a Divorce
While it is not possible to have a contested divorce in Illinois on the basis that the filing spouse has no grounds for divorce, the non-filing spouse can still try to contest the divorce on the basis that there are no irreconcilable differences.
However, under contested divorce law in Illinois, if the parties have lived separately and apart for a continuous period of not less than six months immediately before a divorce petition is filed, there is an "irrebuttable presumption" that irreconcilable differences exist. This means that even if your spouse argues that there have not been irreconcilable differences, if you've been living apart and separately for six months, there's nothing he can do about it.
More common reasons for contesting a divorce include disagreements on issues such as where any children of the marriage should live, how much child and/or spousal support should be paid, how property should be divided and who is responsible for certain debts. These issues must be resolved before the final judgment of dissolution of marriage is issued by the court.
Contested Divorce Procedure in Illinois
To get a divorce in Illinois, one spouse must have lived in the state for at least 90 days. The first step is to file a Petition for Dissolution of Marriage at the circuit court in the county in which you live. Check with the clerk's office if there are other forms to be filed. For example, in Cook County, you must also file a Domestic Relations Cover Sheet, a Summons and a Certificate of Dissolution. You must pay the court fee at the time of filing. This varies by county but is usually between $150 and $300.
The clerk’s office will file your paperwork, give you a case number, assign a judge to your case and issue your summons.
The next step is to serve the papers on your spouse. This may be done by voluntary acceptance or service by a sheriff, special process server (with court permission), publication in a local newspaper or special order of the court.
The respondent (non-filing spouse) has 30 days to file a notice of appearance from the date of service.