The following basic information can get you started with a divorce (also called a “dissolution of marriage”) in the State of Illinois.
Does Illinois have a residency requirement?
Yes. In general, either you or your spouse must have lived in the state for the past 90 days before you can file for divorce in Illinois. Service members can claim residence if they have been stationed in Illinois for at least 90 days. In addition, if you want the court to make decisions about child custody or visitation, the children must have been Illinois residents for at least the past 6 months.
Do we need a lawyer if we agree on everything in the divorce?
It’s always a good idea to get legal advice. A divorce can have important consequences that aren’t immediately obvious. You and your spouse can’t use the same lawyer either, even if you agree on everything. You can choose to represent yourself, however. This is called proceeding "pro se." If you can’t afford to hire a lawyer, contact the domestic relations division of your local circuit court to find out what resources are available for pro se parties in divorce. The Illinois state court web site contains contact information for each of the local circuit courts in the state. You can also contact Illinois Legal Aid for information.
Does Illinois have "no-fault" divorce?
Yes. An Illinois court will grant a "no-fault" divorce based on "irreconcilable differences" (which means the couple can't get along anymore) if the spouses have lived "separate and apart" for more than two years without hope of reconciliation. The court will reduce the required period of separation to six months if both spouses agree to this in writing. In Illinois, spouses can satisfy the requirement of living separate and apart even if they are still living under the same roof, provided that they essentially inhabit separate areas of the household. The separation period can begin even if the spouses are still sharing financial obligations, and it can continue even if they go through efforts to reconcile, such as attending marriage counseling together, during the separation period.
Does Illinois also have "fault" divorce?
Yes. The Illinois divorce statutes list several fault grounds, including:
- mental or physical cruelty
- excessive use of drugs or alcohol for at least two years
- conviction of a felony or "infamous" crime
- impotence, bigamy or adultery
- willful desertion for at least one year
- maliciously attempting to murder the other spouse, and
- infecting the spouse with a sexually transmitted disease.
There will rarely be any benefit to choosing a fault ground in Illinois, however, because the court won’t consider fault in awarding alimony or dividing property. Whether or not fault would be relevant in a child custody or visitation matter would depend on the exact nature of the fault. If you believe there may be a benefit to choosing a fault ground in your case, contact an attorney for advice.
How do I actually file for divorce?
The person seeking the divorce (the "petitioner" or "plaintiff") files a document called a "Petition for Dissolution of Marriage" in the domestic relations division of the circuit court located in the county in which at least one of the spouses lives. The Petition includes basic information about current living arrangements, the grounds for the divorce, and any children of the marriage. The petitioner must serve the Petition on the other spouse (the "respondent" or "defendant"), along with a required Summons. Service is normally either through the sheriff’s office or by a private process server.
How long will the whole process take?
There is a very wide range in how long a divorce can take to complete in Illinois. The main factor will be whether your divorce is uncontested or contested. If you and your spouse have reached agreement on everything in your case, you could complete an uncontested divorce in as little as a month. Cases with many contested issues, on the other hand, can take up to two years, or occasionally even longer.
How much will the divorce cost?
You will have to pay fees to file the Petition in court and serve it on your spouse. The total amount should not be more than about $300 dollars. Contact your local circuit court to get an exact statement of the current filing and service fees. Fees for attorneys, mediators, and any experts you may need in your case are unpredictable due to wide variations in rates and time required. Generally speaking, if your case is simple, and you and your spouse can resolve your issues with little difficulty, costs will be lower. If your case is complex or you have trouble reaching agreements, it could become very expensive.
What is a "joint simplified divorce"?
Illinois allows spouses to file a joint simplified divorce petition if they have reached agreement on all issues, have been married less than eight years, have no children together, do not own real property, have a combined total income of less than $35,000 per year, and have been separated for at least six months. If you and your spouse qualify for this procedure, you can contact your local court for the appropriate forms. You cannot request alimony or spousal support if you file a joint simplified petition.
What is a "prove-up" hearing?
If you and your spouse agree to an uncontested divorce and enter into a Marital Settlement Agreement (MSA), you can resolve your case with a simple court appearance known as a "prove-up" hearing. Your attorney will ask you a few basic questions about the contents of your Petition and will ask you to summarize the terms of your MSA for the court record. Your lawyer will be allowed to lead you through this step by step so that is not an intimidating experience.