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Divorce Basics in Kendall County, Illinois: Marital Settlement Agreement

 Posted on March 07, 2023 in Divorce and Family Law

Yorkville Divorce Lawyer: Basics About the Divorce Process

Contested vs. Uncontested Divorce

In Illinois, an uncontested divorce is also known as a "dissolution of marriage." When both spouses agree to the significant vital terms of a divorce, and neither spouse challenges the divorce, the divorce is uncontested. The key terms in a divorce that must be agreed upon include, among others, the issues of property, debts, children, and spousal support (also known as alimony). Specifically, this includes topics like the division of marital property and marital debts, child custody and parenting schedule, child support and medical insurance coverage for any children, and custody of pets shared during the marriage.

Do I Need to Attend Court Hearings for My Uncontested Divorce?

The spouse petitioning the court for the divorce (by filing the paperwork with the county) must make an appearance at the final hearing with the court. However, only that spouse is required to attend, so long as the other spouse has agreed to and signed all relevant documents (including the Marital Settlement Agreement, discussed in depth below). At the final hearing, the petitioning spouse must testify to the terms of the Marital Settlement Agreement and the identity of both parties. Further, the judge or the other spouse's attorney, if they are assisted by one, can ask questions that ensure the terms of the Marital Settlement Agreement are clearly understood before they are officially finalized by a court order.

What is a Marital Settlement Agreement?

A Marital Settlement Agreement can go by many names. They are sometimes called Divorce Settlement Agreements, Separation Agreements or Separation and Property Settlement Agreements, Custody, Support, and Property Agreements, Mediated Separation Agreements, Collaborative Settlement Agreements, or Property Settlement Agreements. No matter the name used to refer to the agreement, the purpose of the deal is the same in that it is a written document that contains agreements made by both of the divorcing parties for the key divorce terms mentioned above (property, custody, alimony, etc.). This Agreement is significant because once it is signed, it becomes a legally binding contract and both divorcing spouses must follow the terms as they are written. Then, the Agreement will be included in the final divorce decree and become a binding court order. A party that later violates the order faces legal penalties and, for example, could be held in contempt of court.

Do I Need an Attorney to Prepare my Marital Settlement Agreement and Why?

The legal system, including the family legal system, can be complex and confusing. A legal divorce can be an emotional and overwhelming experience, and the stakes are often high because it includes important factors such as finances, property, and children. A Marital Settlement Agreement determines these important terms in a person's life after divorce, and even the slightest mistake can make a big difference. For these reasons, it is highly recommended to hire an attorney to prepare your Marital Settlement Agreement. Further, if your spouse's attorney has already prepared one, it is advised that you hire an attorney to review it with your wants, needs, and rights in mind. It is critical that your rights are protected by adding, deleting, or editing provisions in a Marital Settlement Agreement that was prepared by anyone other than your attorney before you sign any Agreement and it is filed with the court.

When Do I Enter Into a Marital Settlement Agreement?

A Marital Settlement Agreement does not have to be made before the beginning of the marriage. The Agreement can be made before or during the separation of the divorcing parties or before or during the filing of the divorce action. Though the Agreement can be made at any point in time before a divorce trial, it is in the interest of both divorcing parties to form an Agreement as soon as reasonably possible. An agreement will avoid unnecessary arguments as well as attorney and court fees.

Can Marital Settlement Agreements Be Modified?

Generally, if both parties agree to a change of the terms specified in the Marital Settlement Agreement, a modification can be made. A document called a Modification Agreement would need to be drafted that defines the modification's exact terms and memorializes that both parties agree to the modification. The Modification Agreement would then be signed by both parties and filed with the court to be incorporated into the divorce order.

Certain provisions in the Marital Settlement Agreement are more likely to be modified than others. For example, spousal support (alimony) may not be modifiable, depending on the wording of the original Marital Settlement Agreement. This scenario presents another reason why it is advised to have an attorney assist with the preparation of a Marital Settlement Agreement. It must be evident in the original Marital Settlement Agreement whether spousal support (alimony) is able to be modifiable in the future.

On the other hand, terms that relate to children, such as child support, custody, and child visitation agreements, are generally able to be modified as long as the party requesting the modification can show good reason. For a modification request in regards to a child, the requesting party must prove to the court that there has been a significant change in circumstances, that the significant change occurred after the court ordered the original Marital Settlement Agreement, and/or that the modification is in the best interests of the child. Terms involving children do not always require that both parties agree to the change so long as the requesting party can prove the above terms to the court. The judge uses those factors to determine whether a modification is appropriate.

Role of Discovery in Uncontested Divorces

Under the Illinois Marriage and Dissolution of Marriage Act (IMDMA), specific key issues must be completely sorted out before a divorce can be finalized. This includes how marital property and debt will be divided, whether one spouse will pay spousal support (alimony) to the other, and if so, for how long and what amount, and more. Further, if there are children involved, issues involving child support, parenting time, visitation, and what spouse will be in charge of what decisions for the children must also be determined. Even in an uncontested divorce when the parties do not need to go to trial, there is still a discovery process that is used to gather the information necessary to come to an agreement.

What Is Discovery?

Discovery is a part of the legal divorce process. Discovery occurs after the filing of the divorce petition. During discovery, a party gathers information relevant to the divorce. Generally, this is financial information that will assist with the preparation of the Marital Settlement Agreement. Armed with this information, your attorney can best advocate for you in any disputed issues that may arise and come to a fair agreement. The purpose of discovery is to collect as much information as possible regarding the relevant information and this can be done several ways. Explained below are common methods of discovery in an uncontested divorce.

Methods of Discovery

One common discovery method is a formal request and disclosure by the parties. This method involves both parties sending any relevant and necessary documents to the opposing client or their attorney. These documents may include pay stubs, bank account records, deeds or other property interest documents, insurance policies, tax filings records, and more. Under Illinois law, a divorce requires full financial disclosure by both parties, certified by both parties signing an affidavit of financial disclosure. This affidavit states that you have been fully open and honest with your finance documents and disclosures under penalty of perjury. If one party does not comply, the opposing party may ask the court to sanction the non-complying party.

Another method of discovery is called interrogatories. These are a list of questions that the recipient must answer under oath and according to the case's schedule. An attorney is allowed to assist in the answering of these questions. These questions can be about anything relevant to the divorce, and there are certain limitations placed on them by the court. For the party that is asking the interrogatories (questions), there is a limit of only 30 questions. The party that is answering must do so, in writing, within 28 days after being served the questions.

A deposition is similar to asking interrogatories in that it is a sworn statement that is given in response to questions asked by an attorney, however, a deposition is used to obtain candid responses from the answering party and not an answer that is prepared in advance.

Discovery can also be gathered by serving a written request of admission, asking one spouse a question, and requiring them to either confirm or deny; this is called "admissions of fact.” Like with interrogatories, the number is limited to 30 requests for admission, and a response must be given within 28 days. The admission of fact is accepted after no response has been received in 28 days. If there is no response in 28 days, the admission is accepted as fact. A Request to Admit Facts can be asked at any time until the divorce case's final court order is filed.

Additionally, you or your attorney can look into a particular document more closely by requesting production. Finally, a request for production is used to acquire purposely hidden records that may not have been provided during the initial disclosure.

Experienced, Reputable Divorce Lawyers in Kendall County

Divorces are often a difficult and emotional time for those going through the experience. In addition, the world of family law can be complex and confusing. Hiring experienced and responsive counsel to assist you during this process can make all the difference. At Gateville Law Firm, we have the proper knowledge and experience to help those in Yorkville, Oswego, Plainfield, Plano, Sugar Grove, and other areas in Kendall County, Illinois, through the divorce process. In addition, we are committed to advocating for the wants and needs of our clients throughout their cases. Contact us today at 630-780-1034.



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