If your marriage is ending because you or your spouse had an extramarital affair, you might be wondering whether the infidelity could affect your divorce. It's natural to want to punish a spouse who has cheated on you. Although Illinois courts won't let spouses use the divorce process as punishment, a spouse's cheating could impact your case.
Historically, if you wanted a divorce, you had to prove that your spouse was guilty of some kind of wrongdoing (fault). And adultery was usually at the top of the list of misconduct that could be a "ground" (legal reason) for divorce.
Some states still allow you to file for divorce based on your spouse's adultery. But not in Illinois, which is strictly a "no-fault" divorce state.
The only ground for divorce in Illinois is "irreconcilable differences." Basically this means that you and your spouse can no longer get along, which has led to a breakdown of your marriage relationship. Generally, the judge will also have to find that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the family's best interests. However, if you and your spouse have lived separate and apart for at least six continuous months by the time your divorce is final, the judge will accept that you've met the irreconcilable-differences requirement, without requiring any further proof. (750 Ill. Comp. Stat. § 5/401(a) (2022).)
Of course, adultery is one of the most common reasons that marriages end in divorce. And unless you and your spouse can work through the emotional repercussions of an extramarital affair, infidelity can certainly play a central role in leading to the permanent breakdown of your marriage. But it isn't a legal reason for dissolution of marriage in Illinois. That means there's no need to prove or disprove that the affair took place in order for you to obtain your divorce.
The divorce laws in most states requires judges to consider certain factors when they're deciding the issue of alimony (known as "maintenance" in Illinois). Many of these factors are similar from state to state, such as the length of the marriage and the spouses' age and health.
Fault—such as adultery—is a different story, however. Some states will allow the judge to take a spouse's misconduct it into consideration, but Illinois isn't one of them. In fact, Illinois law specifically states that judges must make their decisions about alimony "without regard to marital misconduct." (750 Ill. Comp. Stat. § 5/504(a) (2022).)
Under certain limited circumstances, adultery might affect judges' decisions on other issues in an Illinois divorce.
Illinois is an "equitable distribution" state. That means that when judges are dividing spouses' assets in divorce, they'll make their decisions based on what they believe would be fair under the particular circumstances of each case.
Illinois law sets out a long list of factors for judges to consider when making that determination, but adultery isn't among them. In fact, just as with alimony, the law specifically bars judges from considering the spouses' misconduct when deciding how their marital property should be divided. (750 Ill. Comp. Stat. § 5/503(d) (2022).)
However, if a spouse squandered the couple's marital assets in the course of pursuing an affair, that might provide a back-door opening for the consequences of adultery to enter the picture in certain cases. That's because the law requires judges to consider whether, and to what extent, a spouse has "dissipated" marital assets.
Let's say a cheating spouse uses the couple's money to pay for lavish gifts, trips, or even support for a lover. In this type of situation, the adultery hasn't just caused emotional harm to the innocent spouse. It has resulted in financial harm as well. And the judge might decide that the aggrieved spouse deserves compensation by receiving a greater share of the couple's assets.
Decisions about child custody in Illinois, as in all states, must be based on what would be in the children's best interests. (750 Ill. Comp. Stat. § 5/602.5(a) (2022).) The custody statute lists a variety of factors judges must consider when they're making custody decision. Adultery isn't on the list, but there's a catch-all phrase: any other factor that the court expressly finds to be relevant. (750 Ill. Comp. Stat. § 5/602.5(c)(15) (2022).)
As a practical matter, a parent's adultery is unlikely to affect a judge's decision about where the child will live most of the time, or about parenting time (visitation). These days, judges generally recognize that it's best for children to have an close relationship with both parents after the divorce. The mere fact that a parent had an extramarital affair during the marriage doesn't mean that person can't be a good parent.
That said, a judge could conceivably consider a parent's adulterous behavior to be relevant if it endangers the child's well-being—for instance, if a cheating parent's ongoing relationship with the new partner involves abusive behavior, or if a parent becomes completely uninvolved in the child's life because of that relationship.
Child support is a different matter. Child support in Illinois is calculated under the state's guidelines, which are primarily based on the parents' income, childcare expenses, the cost of medical insurance, and the children's living arrangements, including how much time they spend with each parent. Typically, the more time a child stays with a parent, the less child support the parent would be responsible for, because the parent is providing for the child's needs while they're together.
Because the support payments are meant for the children's needs—not as a reward or punishment for the parents' behavior—either parent's adultery won't play a direct role in determining which of them will pay support or the amount of the payments. Indirectly, however, if a judge limits the time a parent spends with the children because of circumstances around that parent's extramarital relationship—because of concerns about the children's well-being—that may result in the parent having to pay more child support than would have been owed under a less restricted custody/parenting time arrangement.
Yes. Most states have gotten rid of their old laws making adultery a crime, but not Illinois. Adultery is considered a Class A misdemeanor in the state (720 Ill. Comp. Stat. § 5/11-35 (2022).) However, prosecution for violations of this old law are probably rare or nonexistent these days.
Many people find it devastating to learn that their spouse has had an extramarital affair. But if you've decided to end your marriage as a result, it's never a good idea to try to use the divorce process as a way to punish your spouse.
Even in states where there aren't fault grounds (like Illinois), aggrieved spouses may channel their anger by contesting issues like custody, alimony, or property distribution just for the sake of fighting. All this accomplishes is to make the entire process more stressful, not just for your spouse, but for you and your kids as well. And it will undoubtedly increase the cost of divorce, particularly attorneys' fees.
If at all possible, try to separate the emotional issues resulting from your sense of betrayal from the practical and legal issues in your divorce. While you're taking steps to rebuild your life after divorce, do what you can to ensure that the divorce itself will be as smooth as possible.
If you can cooperate with your spouse enough to work out a divorce settlement agreement, you'll be able to get an uncontested divorce in Illinois—which is always quicker, easier, and cheaper than a traditional contested divorce. And if you need help resolving your disagreements, you can try divorce mediation. With an agreement, you can probably get a DIY divorce, either on your own or by using an online divorce service.
But if you're the one who went outside of the marriage for physical intimacy, you might find yourself dealing with a spouse who simply won't let it go and insists on a drawn-out legal battle over every issue in your divorce. When that's the case, you should speak with an experienced family law attorney to learn what you can do to protect your interests.