Process Brief
Stages of a family law case
** The information provided below is intended for informational purposes. It is not meant to provide legal advice, nor is it intended to create an attorney-client relationship. Metz, Gilmore & Vaclavek recommends that you consult with an attorney. If you would like a consultation, contact Carl Gilmore at info@mgvlegal.com, (815) 459 2844.
By Carl W. Gilmore
Metz, Gilmore & Vaclavek
Crystal Lake, Illinois
Once a family law action is filed, the process can be confusing. What is happening? What is not?
A family law action can be divided into four phases. The phases often overlap. The phases are: 1. Pleading, 2. Discovery, 3. Settlement discussion, 4. Case conclusion.
Pleading
The first step is filing the case with the court, which involves filing initiating papers. One of the initial papers is a “summons.” The summons must be served upon the opponent. The summons notifies the other side a case has been filed, and service of the summons allows the court to take action against the opponent.
Once service occurs, the other side has time to enter the case, which is done by filing an “appearance.” The appearance must be filed within 30 days of service, and may be filed either on their own (called a “pro se” appearance) or through an attorney.
After an opponent is served, temporary actions may be taken even if the opponent has not filed an appearance. Until service, only very limited actions can be taken.
Your opponent gets time to respond to the papers, which also occurs by filing papers.
Discovery
“Discovery” is a fancy lawyer word for investigation. Discovery can include requesting documents and answers to questions. Discovery may also include serving subpoenas upon people who are not part of the case. A subpoena is, essentially, a court order to provide documents, items, an opportunity to look at things, or to appear and answer questions.
How much discovery is conducted depends in large part upon the documents and information you already have. The extent of discovery also depends upon your opponent’s cooperation. If they are generally cooperative, discovery takes less time. Initial (and sometimes all) discovery generally lasts 45 to 90 days. In short marriages, or in other cases where there are few issues, extensive discovery is rarely required. In cases where one party controls most of the finances or documents, more discovery is often required.
During discovery, motions may be brought regarding property, temporary support or custody and visitation. Motions can also be brought for other reasons. Also, during discovery, settlement discussion may begin.
Other steps during the discovery phase are court-ordered mediation, and possibly custody evaluations, parenting classes, or appointment of court witnesses like a guardian ad litem. Valuation of assets and other processes associated with family law cases often occur during discovery. All these steps may occur at other times during the case.
Settlement discussion
Settlement discussion usually begins once there is comfort with the knowledge of assets, debts, income and the other factors in your case. Most cases settle, meaning the parties agree and there is no need for trial. If a settlement can be reached early, the case concludes quickly.
If the parties reach a settlement impasse, a pretrial settlement conference can occur. Pretrial is a chance for the judge to hear the issues and facts and make nonbinding recommendations toward settlement.
Case conclusion
If the parties accept the judge’s pretrial recommendation or otherwise settle, the agreements will be transcribed into a settlement agreement or judgment with a settlement agreement attached. A short hearing occurs, and the case is concluded.
Trial will be scheduled only after the pretrial conference occurs and if the case does not settle. Additional discovery may be required to determine final facts or to get additional information.
Trials in family law cases are tried before a judge. There is no right to a jury. The judge’s decision is the final outcome of the case, although the decision may be appealed. Bad actions during a marriage, which are called “fault,” are not considered except in narrow circumstances.
How long should it take?
The duration of a family law case depends upon the parties. More disagreement often means longer duration. Illinois law requires cases involving children to be decided within 18 months of filing.
A case does not have to take 18 months. Usually, cases are settled within a year. It can settle earlier. It is also common for the court to continue a trial at least once after it is set.
Carl W. Gilmore has practiced family law in McHenry County for more than 25 years. His practice areas include divorce, parental rights and placement, parentage, child support guardianship and all areas pertaining to domestic relations.
© 2020 by Carl W. Gilmore