Adultery in Illinois: Does Cheating Affect Alimony?

This article provides an overview of alimony in Illinois and reviews whether adultery might impact an alimony award. If you have specific questions after reading this article about your own case, you should contact an experienced family law attorney in your area.

An Overview of Alimony in Illinois

When a marriage ends in divorce, many spouses find that they must evaluate exactly what they’ve been giving to the common marital cause. Sometimes both spouses work outside the home and have relatively equal earning power. Other times one spouse contributes time and energy to raise the couple’s children and maintain the family home while the other spouse works at a high-powered, lucrative professional career. Or one spouse might even work at a series of menial jobs to put the other spouse through expensive professional schooling.

Alimony (which is technically called “maintenance” in Illinois) is the money that one spouse ("the obligor") pays to the other ("the obligee") to ensure that both spouses are on relatively equal economic footing when they split up. Fundamental fairness dictates that one party shouldn’t be enriched while the other is impoverished. Alimony is a legal method for allowing a lower-earning spouse to continue covering living expenses.

Judges in Illinois have the authority to order alimony payments while the divorce is proceeding, in the final order, or even during an appeal that’s filed after the divorce is complete. In addition, there are four basic types of alimony available in Illinois:

• Temporary alimony is paid for a fixed period of time, then it ends.
• Permanent alimony is paid for the rest of the obligee’s lifetime unless a major event occurs. Typically these events consist of the obligee’s remarriage or either spouse’s death.
• Rehabilitative alimony is a subset of temporary alimony. It’s paid for a fixed period of time only, but the goal is to allow the obligee to acquire the education, skills, training, work history, and licensure needed to become financially self-supporting.
• Reviewable alimony is another subset of temporary alimony. The court orders alimony, then reserves jurisdiction (meaning, retains the legal power) to come back later and review the alimony award to see how it’s working for everyone. After the review, the court can decide that alimony should continue or end altogether.

What Role Does Adultery Play in an Illinois Divorce?

The modern trend in American divorce law is toward “no-fault” divorce. No-fault divorce is the kind of divorce you get when the marriage is over but you don’t want to explain why in a courtroom. Generally speaking, you can get a no-fault divorce by explaining in your divorce paperwork that the marriage is “irretrievably broken” (so damaged that it can’t be fixed) or that you have “irreconcilable differences” (you and your spouse can’t resolve your arguments). That’s all there is to it.

Before no-fault divorce started gaining traction, the dominant legal approach to divorce was “fault-based.” In a fault-based divorce, the judge would consider evidence of “marital misconduct” committed by a “guilty spouse” against an “innocent spouse.” Some of the grounds (meaning, legal reasons) for fault-based divorce included things like fraud, chemical dependency, abandonment, abuse, and of course, adultery. Adultery occurs when a legally married spouse has a sexual relationship with a person who isn’t the other spouse.

Illinois is neither a no-fault nor a fault-based state. Instead, the law contains elements of both. You can get divorced if you and your spouse have “irreconcilable differences” and the following statements are true:

• You and your spouse have tried to solve your problems, but you can’t, and you believe your marriage can’t be saved.
• You and your spouse have been separated for two years. Or, if you both agree to the divorce, you’ve been separated for six months.

Illinois also allows divorce for fault-based reasons, including adultery. So adultery may be a consideration when a judge decides whether to allow a couple to divorce.

How Does Adultery Affect Alimony Awards in Illinois?

Even though adultery is a ground for divorce, judges in Illinois can’t consider adultery at all when it comes to alimony. The relevant alimony statute specifically says that alimony awards have to be calculated “without regard to marital misconduct.” Instead, these decisions have to be “just,” which means they have to be fair and reasonable.

To ensure that alimony decisions are rational, judges are required to consider a list of objective factors, including:

• the income and property of each spouse, including marital property apportioned and non-marital property assigned to the spouse seeking maintenance in the final divorce order
• the needs of each spouse
• the present and future earning capacity of each spouse
• any impairment of the present and future earning capacity of the spouse seeking maintenance due to that spouse devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities for the sake of the marriage
• the time necessary to enable the spouse seeking maintenance to acquire appropriate education, training, and employment, and whether that spouse is able to be self-supporting through appropriate employment or must instead act as custodian for a child to such an extent that employment isn’t an appropriate option
• the standard of living established during the marriage
• the duration of the marriage
• the age and the physical and emotional condition of both spouses
• the tax consequences of the property division in the final divorce order and how those consequences will affect each spouse economically
• the contributions and services by the spouse seeking maintenance to the education, training, career, or career potential or licensing of the other spouse
• any valid agreement of the spouses (like a prenuptial agreement), and
• any other factor that the court expressly finds to be just and equitable.

Click here to get more detailed information how alimony is calculated and determined in Illinois.

Additional Resources

If you have questions about alimony and adultery in Illinois, please contact an experienced family law attorney for help.

For self-help purposes, you can look at the Illinois Courts' Citizen Self-Help site and at court forms tailored to your local court. You can also browse the Illinois Legal Aid Online site for resources and assistance designed to help low-income Illinois residents with legal problems. Finally, you can review the Illinois Compiled Statutes to read the applicable laws for yourself.