Grounds for Divorce in Illinois
Learn about the process to start a divorce in Illinois, and whether the "grounds" for divorce really matter.
What are the Grounds for Divorce in Illinois?
The old concept that only an “innocent” spouse may file for divorce has been abandoned in Illinois. Although Illinois still maintains the traditional "fault" grounds for divorce, it’s added a "no-fault" ground known as “irreconcilable differences.” Today, either spouse may file for divorce regardless of whether one was at fault, or engaged in any marital misconduct such as adultery.
What are the “Fault” Grounds?
The fault grounds for divorce are:
- bigamy (the other spouse had a wife or husband living at the time of the marriage)
- abandonment for a period of at least one year
- alcohol abuse or drug addiction for 2 years
- attempting to take the other spouse’s life
- extreme and repeated physical or mental cruelty
- a felony conviction, and
- infecting the other spouse with a sexually transmitted disease.
In practical terms, these fault-based grounds will have little impact on the outcome of a divorce. That’s because Illinois courts don't consider fault in determining how to divide property between the spouses, or when setting the amount of alimony. They may come into play, however, when courts are considering child custody and visitation matters.
See Illinois Alimony FAQs for a complete description of the factors Illinois courts will consider when making decisions about alimony.
If your spouse insists on filing for divorce based on one of the fault grounds, but you’d prefer to avoid airing any dirty laundry in court, you can wait two years, and file for a “no-fault divorce.
What is a "No-Fault" Divorce?
As stated above, a "no-fault" divorce means that neither spouse was at fault for the breakup. You won’t have to prove, or be subjected to your spouse’s claims of, marital misconduct (the fault grounds listed above.)
The no-fault grounds are pretty simple, and require only the following:
- the spouses have lived separate and apart continuously for 2 years ("separate and apart" doesn’t necessarily mean separate housing; if the spouses are separated but continue to reside in the same household, they must show that they have lived as if they were "separate and apart" – basically as roommates)
- irreconcilable differences have caused the irretrievable breakdown of the marriage (you just can’t get along)
- efforts at reconciliation (getting back together) have failed, and
- further attempts at reconciliation would be impracticable and not in the best interests of the family.
Do we Have to Wait Two Years Before we File for a No-Fault Divorce?
Not necessarily. If you and your spouse have lived separate and apart for a continuous period of at least 6 months prior to entry of the divorce judgment, the 2-year separation requirement may be waived, but only if you both agree to do so in writing. If the two of you can’t agree, then you’ll have to meet the 2-year condition.
What are the Major Legal Issues in a Divorce?
The major issues that typically come up in divorce cases are property division (who gets what), child custody (including visitation), child support, and alimony (otherwise known as maintenance or spousal support).
Spouses can enter into an agreement (sometimes called a “property settlement agreement” or “divorce agreement”) to resolve all or some of the issues presented by their divorce case. This agreement, and in particular any agreements regarding child custody and child support, will need court approval. .
If spouses can’t agree on any of the issues, however, they’ll have to fight it out in court where a judge will decide for them under the principles of Illinois law.
What is a Legal Separation?
If you’re living separate and apart from your spouse, you may petition (ask) a court to grant you a legal separation and reasonable support and/or alimony. A judgment for legal separation will not prevent either spouse from filing for divorce later.