Illinois Divorce Basics
This article explains the rules and procedures for getting a divorce in Illinois.
These rules apply to opposite-sex married couples and to opposite sex and same-sex couples who are civil union partners.
Grounds for Divorce
Illinois recognizes both no-fault and fault grounds for divorce. In order to get a divorce based on no-fault grounds, otherwise known as “irreconcilable differences,” the parties must have been separated for a period of two years. If the parties agree to the divorce in writing, then only a six month separation is required.
However, if the parties don’t agree to the divorce, have not been separated for two years, and can’t get the court to waive the separation requirement, then one of the spouses can file for a divorce based on fault grounds. These grounds include impotency, adultery, bigamy, desertion, cruelty or a felony conviction. The court may require the spouses to attend a conciliation conference and counseling or if there are children involved in the case, an educational program about the effect of divorce on children.
Illinois also recognizes civil unions, which afford same-sex and opposite-sex couples a legal status similar to marriage. Although it does not give these couples exactly the same rights as a marriage does, a civil union is dissolved in the same manner as a marriage.
Residency Requirement and Waiting Period
To file for divorce in Illinois, one of the parties must have been a resident of the state for three months.
Where a couple states that irreconcilable differences have caused the breakdown of their marriage, then the requirement is that they must have been living separate and apart for two years. However, if the spouses have been living separate and apart for at least six months continuously before the final judgment, then the parties can choose to waive the two year requirement. Living separate and apart does not necessarily mean living in different houses. There are other ways to show separation, such as the lack of intimacy.
Property Division in Illinois
Illinois is an equitable distribution state, which means that the court will divide the property between the two spouses fairly, but not necessarily equally. When distributing property, the court may consider the following factors, among others: the duration of the marriage, the value of the property assigned to each spouse, and the economic circumstances of each spouse. The court will distribute marital property and debts, meaning what was acquired during the marriage. Any property that each of the spouses came into the marriage with will remain that spouse’s own separate property; this also applies to gifts and inheritances that the spouse received during the marriage.
(For more detail, please see Property Division in an Illinois Divorce).
In Illinois, alimony is referred to as maintenance. The court may grant temporary or permanent orders of maintenance based on each spouse’s income and property, financial needs, and earning capacity. Even though Illinois recognizes some fault grounds for divorce, like adultery, allegations of fault do not impact the amount of support awarded.
(Find out more about Spousal Support (Alimony) in Illinois).
Illinois uses a chart of guidelines to calculate child support, which looks at the number of children in the support order and the non-custodial parent’s net income. For example, if there is only one child that the parent is supporting, then the amount of child support would be a minimum of 20% of the non-custodial parent’s net income. For two children, it would be a minimum of 28%. Net income is the amount of money that a person makes each month minus any taxes, mandatory retirement contributions, insurance premiums, medical expenses, repayment of certain debts, reasonable expenses for the child, or other support obligations.
The court will take the amount that is suggested by the guidelines chart and determine whether that amount would be in the best interest of the child. Depending on what would be best for the child, the judge could increase or decrease that amount based on several factors, including the financial resources and needs of the child and the parents, and the standard of living that the child was accustomed to before the separation. You can find more information about child support obligations and the guidelines chart at Child Support Services.
The court will evaluate the best interest of the child in determining child custody. This means that the court will look at several factors, including the wishes of the child, the relationship between the child and each parent, the mental and physical health of everyone in the family, and whether there are any threats of physical violence.
If one parent wants to move out of the area, the court will look at five different elements in making a decision about the move: 1) whether the move will enhance the quality of life for both the parent and the child; 2) the reasons the parent is locating (the move cannot be intended to prevent or frustrate visitation); 3) the other parent’s reasons to resist the move; 4) the move’s possible effects on visitation; and 5) whether a reasonable and realistic visitation schedule can be arranged. TO learn more about how custody is determined in Illinois, see Child Custody in Illinois: The Best Interests of the Child.