Illinois Grounds for Divorce FAQ's

1) What are grounds for divorce in Illinois?
The old concept that only an innocent spouse may file for divorce has been abandoned in Illinois; either party (even the "guilty" spouse) may file. Illinois is one of a few states that has maintained the traditional fault-based grounds for divorce, but has added a "no-fault" ground, known as irreconcilable differences.

Grounds for divorce are:

• natural impotence at the time of the marriage and continuing thereafter
• bigamy (also a ground for annulment)
• adultery
• wilfully desertion or absence from the petitioner for the space of one year
• habitual drunkenness for the space of 2 years
• gross and confirmed habits caused by the excessive use of addictive drugs for the space of 2 years
• threatening the life of the other by poison or other means showing malice
• extreme and repeated physical or mental cruelty
• conviction of a felony or other infamous crime
• infecting the other spouse with a communicable venereal disease.
• irreconcilable differences

Although the petitioner must allege and testify that the respondent spouse has committed a ground "without fault or provocation on the part of the petitioner," as a practical matter, if the grounds are contested, all a spouse need do is wait for two years and file on the ground of irreconcilable differences.

2) What is required for a "no-fault" divorce?
The "no fault" ground requires that:

• the spouses have lived separate and apart for a continuous period in excess of 2 years [Illinois Courts have found that "separate and apart" does not necessarily mean separate housing; if the parties reside in the same household, they must live as if they were "separate and apart."]
• irreconcilable differences have caused the irretrievable breakdown of the marriage
• efforts at reconciliation have failed and further attempts at reconciliation would be impracticable and not in the best interests of the family.

3) Must spouses who want a no-fault divorce wait two years?
If the spouses have lived separate and apart for a continuous period of not less than 6 months prior to entry of the divorce judgment, the 2-year living apart requirement may be waived if both parties stipulate in writing. After separation, any period during which the parties live together while attempting to reconcile and participating in marriage counseling, or under a written reconciliation agreement, will count towards the required separation period if the reconciliation fails.

4) What are the major legal issues in a divorce case?
The issues in every dissolution case are child custody (including visitation), property, child support, and maintenance (otherwise known as alimony or spousal support). All of these issues must be adjudicated before a judgment of dissolution may be entered. Under certain circumstances, the court may enter a judgment for dissolution that reserves any of these issues for later disposition.

5) What happens to the case if one party dies while the divorce case is pending?
If the death occurs before entry of judgment, the case abates (ends). If the death occurs subsequent to entry of a judgment for dissolution, but before judgment on reserved issues, the proceedings do not abate and the reserved issues will be adjudicated.

6) What is a legal separation?
A spouse living separate and apart without fault may petition a court for a judgment of legal separation and reasonable support and maintenance. A judgment for legal separation is not a bar to either party later instituting an action for dissolution of marriage.