Contested divorce in Illinois, from discovery to judgment

A contested Illinois divorce has a shape most people do not expect. The trial is split in two, and the first half is over almost before it starts. Nobody is contesting whether the marriage broke down, because since 2016 there is nothing to contest. The fight is entirely in the second half.

What happens in a contested divorce trial in Illinois?

It gets bifurcated by statute. Section 403(e) says contested trials shall be on a bifurcated basis, with the issue of whether irreconcilable differences caused the irretrievable breakdown tried first, regardless of whether that issue is contested or uncontested.

Once the court finds the marriage has irretrievably broken down, it has a choice. It may allow additional time for the parties to settle the remaining issues amicably before resuming the trial, or move immediately to trial on everything else. Where the section 401 requirements are uncontested and proved as in a default, the trial on the remaining issues proceeds immediately if the court orders it or the parties stipulate.

What the court may not do is dissolve the marriage after hearing only the grounds testimony and leave the money for later. Section 403(e) says the judgment, including the order dissolving the marriage and the incorporation of any settlement agreement, is entered only at the conclusion of the case. The exception is a reserved issue under section 401(b), which needs either the parties' agreement or a motion plus a finding that appropriate circumstances exist.

There is no jury. The Clerks of Courts Act sets a jury fee of up to $212.50 for civil cases where a jury right exists, and it does not exist on the issues in a dissolution.

How does discovery work in a contested Illinois divorce?

Like any other civil case. Section 410 says the process, practice and proceedings under the Act are the same as in other civil cases except where the Act or a rule provides otherwise.

The practical limits worth knowing:

• Thirty interrogatories. Rule 213(c) caps written interrogatories at 30 including subparts, absent agreement or leave of court on a written motion showing good cause and setting out the proposed questions.

• Document production and third-party subpoenas. The route to statements, returns, plan summaries and business records your spouse controls.

• Depositions. Of your spouse, and of anyone whose testimony the money turns on.

• Court-appointed experts. Under section 503(l), the judge may seek the advice of financial experts or other professionals. Their advice comes in writing and is given to counsel, they may be examined as the court's witness, and either side may subpoena them for discovery or trial. The court allocates their cost between the parties based on financial ability.

The financial affidavit chapter covers the affidavit that anchors all of this and the sanctions for filing a misleading one.

What deadlines does a contested Illinois divorce run on?

• 21 days to respond to a temporary relief motion, or the time stated in a temporary restraining order

• 90 days from service to the initial case management conference, in a case with children

• 120 days from service or filing to file a proposed parenting plan

• 60 days after the initial case management conference to complete the parenting class

• 30 days after mediation ends for the full case management conference

• 60 days before trial, or 30 days after discovery closes, for a dissipation notice, whichever is later

• 14 days after proofs close to file a petition for contribution to fees, if it was not filed earlier

• 60 days after proofs close for the judgment, or 90 with an order specifying good cause

The timeline chapter puts realistic ranges around those fixed points.

Who pays the attorney fees in an Illinois divorce?

Sometimes the other side, and Illinois has an unusually strong mechanism for making that happen while the case is still running.

Interim fees. Under section 501(c-1), a pre-judgment proceeding for interim attorney's fees and costs is nonevidentiary and summary except for good cause shown, and hearings on it are scheduled expeditiously. The court assesses an award once it finds the party from whom fees are sought has the financial ability to pay reasonable amounts and the party seeking them lacks sufficient access to assets or income.

The amount has a floor. Except for good cause shown, an interim award may not be less than the payments made or reasonably expected to be made to the other party's counsel. In deciding, the court weighs the income and property of each party including marital property in one party's sole control, each party's needs and realistic earning capacity, the standard of living, the complexity of the issues including business valuation and tax planning, each party's access to relevant information, and what the other side is paying its lawyer.

Where both parties lack the ability to pay, the court allocates the available funds between the two lawyers in a way that achieves substantial parity.

Contribution at the end. Under section 503(j), a petition for contribution to fees is heard after proofs close on all other issues and before judgment. If it was not filed before the final hearing, it has to be filed no later than 14 days after the close of proofs. The award is decided on the section 503 property factors, and on the section 504 maintenance factors too where maintenance was awarded.

The general power. Section 508(a) lets the court, after notice and hearing and after considering the parties' financial resources, order any party to pay a reasonable amount toward their own or the other party's costs and fees, in the maintenance or defense of a proceeding, in enforcement or modification, and on appeal.

One structural point: interim awards, and the aggregate of other payments each party makes to counsel, are deemed advances from the marital estate unless the court orders otherwise. What one side spent on lawyers comes back into the accounting at the end.

Can the court order you to try to reconcile in Illinois?

It can order a conference about it. Section 404 lets the court order a conciliation conference on a party's request or on its own motion, where it concludes there is a prospect of reconciliation.

Nothing said there follows you. The facts adduced at a conciliation conference may not be considered in this or any later action, and no report from it becomes part of the record unless both parties stipulate in writing. The court may also prohibit conciliation or any other process that would require the parties to meet and confer without counsel, on good cause shown.

What happens after the trial in an Illinois divorce?

Judgment inside 60 days. Section 413(a) requires the judgment to be entered within 60 days of the closing of proofs, including any section 503(j) contribution hearing and the submission of closing arguments. The judge can take another 30 by entering an order specifying good cause, which makes 90 the outer limit.

The judgment is final when entered, subject to appeal. Two things follow from that:

• You can remarry during an appeal. An appeal that does not challenge the finding on grounds does not delay the finality of the provision dissolving the marriage past the time for appealing that provision, and either party may remarry pending appeal.

• You keep paying during an appeal. An order for maintenance or child support is not suspended and its enforcement is not stayed while post-judgment motions or an appeal are pending.

What is modifiable afterward is narrow. Property provisions are never modifiable. Maintenance is modifiable on a substantial change in circumstances unless the parties made it non-modifiable. Child support and parental responsibilities always stay open on a substantial change. The property division chapter covers where that line falls and why it shapes settlement.

How do you avoid trying an Illinois divorce?

By settling, which is what happens in most of them. Illinois builds in several off-ramps: mediation on parenting issues, which the court is directed to order; pretrial conferences where a judge tells both sides what they are likely to get; and an interim fee mechanism that keeps the financially weaker spouse in the game long enough to negotiate. The mediation and settlement chapter covers how those work.