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TIMETABLE FOR DIVORCE CASE: WHAT HAPPENS AND WHEN? |
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Is there a typical timetable for a divorce case? |
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How is a divorce suit started? |
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What does the summons require the defendant to do? |
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What is the purpose of the response? |
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The divorce petition may have stamped on it a date for a "scheduling conference." Is this the trial date? |
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What is "discovery" and what is the time frame for discovery? |
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When do lawyers attempt to negotiate a settlement? |
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How long does the negotiating process take? |
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Won't a "four way conference" (lawyers and clients) quickly settle a case? |
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What is a settlement (pre-trial) conference and when does it happen? |
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What if the issue of child custody is contested? Are there special hoops to jump through? |
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How long will it take for the case to come to trial? |
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How long will the trial take? |
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| Q: |
Is there a typical timetable for a divorce case? |
| A: |
Yes, but having said that, my experience is that hardly any divorce case is typical, so the below time frames, and what happens, are not as reliable as the sun rising in the east every morning. |
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| Q: |
How is a divorce suit started? |
| A: |
By filing of a petition for divorce (dissolution of marriage) with the Clerk of the Circuit Court, having the clerk issue a summons and having a deputy sheriff, or private process server, serve the summons on the other side (defendant). |
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| Q: |
What does the summons require the defendant to do? |
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The summons tells the defendant he has 30 days to file an appearance and file a response to the petition. In practical terms it means that by the 30 th day you should have hired a lawyer, or if you intend to represent yourself, then you should file your own appearance (forms available at the clerk's office) and file a response (no forms) either admitting or denying the allegations of the divorce petition. |
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| Q: |
What is the purpose of the response? |
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The response informs the judge and the opposing party and counsel of the matters that are being denied, so if there is a trial, these are the matters that are at issue. For example, the plaintiff may allege that she is the proper parent to have custody of the children. If the defendant wishes to contest custody, or believes he may want to contest custody, this allegation will be denied. |
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| Q: |
The divorce petition may have stamped on it a date for a "scheduling conference." Is this the trial date? |
| A: |
No. At the scheduling conference the attorneys for the parties appear and explain to the court the status of the case. |
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| Q: |
What is "discovery" and what is the time frame for discovery? |
| A: |
It is your right to have the opposing party answer questions about the marriage, such as sources of income etc. These questions are called interrogatories. There are also document production notices by which the opposite party is required to produce documents, for example bank statements, documents relating to stock trading etc. The lawyer drafts these interrogatories and production notices and mails them to opposing counsel. Compliance with the interrogatories and production notice should be within 30 days of the mailing. If there is not timely compliance then a court order is entered to compel compliance, and if there is no compliance with the court order sanctions may be imposed, such as barring the other side from testifying at trial as to the subjects on which discovery was sought. Usually the written discovery (interrogatories and production notice) leaves holes and this is filled in by the taking of a discovery deposition. At a discovery deposition the opposing party, or for that matter a witness who is subpoenaed, is required to come to a lawyer = s office and answer questions under oath. The questions and answers are transcribed by a court reporter.
Usually the discovery procedure takes about four months, so by the time discovery is completed it is about five or six months from the time the case started. The time it may take to complete discovery may be substantially longer for a case with complex financial facts, such as the evaluation of a business. The discovery may also take longer if the other side does not cooperate and court orders need to be entered in order to have compliance with discovery. |
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| Q: |
When do lawyers attempt to negotiate a settlement? |
| A: |
Lawyers and parties need to know the facts before they can take settlement positions. Usually this means that discovery must be completed. |
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| Q: |
How long does the negotiating process take? |
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This depends on the complexity of the case and what is at issue. Child custody cases are the most difficult to settle. Typically the negotiations are by exchange of letters and documents, supplemented by telephone calls and sometimes in person conferences between lawyers. |
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| Q: |
Won't a "four way conference" (lawyers and clients) quickly settle a case? |
| A: |
No. I am not a fan of four way conferences. I have found that they are often either non-productive, or counter productive. There are several reasons for this. First, often the four way conference is scheduled before everyone knows all the facts. You must know the size of the pie before you can divide it. Second, lawyers will often "showboat" to impress their clients and this is a poison pill to the negotiations. My approach to four way conferences is that they should be conducted only after all the facts are known and there has been an agreement in principle as to the major terms of settlement, so what is left to decide are the details and plugging in some figures, and this should be done on the basis of an agenda and a pre-agreed time length for the four way conference. |
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| Q: |
What is a settlement (pre-trial) conference and when does it happen? |
| A: |
Opportunities to settle the case may occur at any time that the parties and lawyer are all together, for example, when there is a court appearance requiring everyone's attendance, or at a deposition. The most likely time for a case to settle is at the settlement conference. A settlement conference is a meeting between lawyers and the judge in which they attempt to settle the case. The settlement conference usually takes place when one of the parties asks the judge to set the case for settlement conference. Before the settlement conference each party (lawyer) will prepare a settlement conference memo which tells the judge the background of the case, which includes ages, occupations, incomes, assets etc. of the parties, and information about the children. The memo then urges the judge to make settlement recommendations which the party and lawyer want. Settlement suggestions should be backed by reasons.
The judge and the lawyers go into chambers (the judge's office) and discuss the facts of the case, the law, and each lawyer's argument as to why the lawyers' proposed settlements should be recommended by the judge. Usually, by the time of the settlement conference the parties-lawyers are in agreement as to the basic facts. The judge will then consider the facts, arguments of counsel and then, in essence, state to the parties that if the case goes to trial and if the evidence is as the judge understands it to be from the settlement conference, the judge will make these recommendations. The judge then announces her or his recommendations for settlement. The lawyers then take the recommendations to their clients.
The judge, in making recommendations, has not decided the case and the parties are entitled to go to trial, but unless the facts of the case come out differently at trial than the judge believed them to be at the settlement conference, the judge's pre-trial recommendations should be heeded. If it appears the case is going to trial, there is another conference between lawyers and the judge (Case Management) to work out the logistics of the trial. |
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| Q: |
What if the issue of child custody is contested? Are there special hoops to jump through? |
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Yes. First, whether or not child custody is contested, the parents must participate in a parenting class before the court can enter a final judgment. The cost of the parenting class is $50. Classes are held at McHenry County College. It is a four hour class. If the issue of child custody is contested, the rules of court require that child custody be mediated. In mediation the mediator attempts to assist the parties in resolving the issue of custody by agreement. Typically in child custody cases the judge will order (at the request of either party) a child custody evaluation which involves interviewing of people who have knowledge of pertinent facts, interviews with the children, interviews with parents, and usually will also include psychological testing of the parents. |
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| Q: |
How long will it take for the case to come to trial? |
| A: |
This issue is county specific, and it also changes from time to time. In McHenry County, from the time the judge enters an order setting the case for trial, and trial time, it is usually about three to four months. |
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| Q: |
How long will the trial take? |
| A: |
Typically three to four days, which are usually half days, starting at 1:30 p.m., but in non-complex cases, where it is only the husband and wife who testify, it could be a one-day trial. On the other hand, in Cook County there was recently a complex, and highly contested case, in which the trial lasted for 60 full days. |
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