Adultery in Illinois: Does Cheating Affect Alimony?

Learn whether adultery can affect alimony in Illinois.

By , Retired Judge

An Overview of Alimony in Illinois

Depending on which state you live in, the classic term "alimony" can have different names. In Illinois, it's referred to as "maintenance." For purposes of this article, we'll use those terms interchangeably.

Divorce can cause emotional and financial turmoil in a marriage. Often, one spouse is in better financial health than the other, such as by having a higher-paying job, a better career, or access to more assets. In cases like this, a judge might award maintenance, which is the amount that the higher-earning spouse pays to the lower-earning spouse, during and/or after a divorce. It's intended to provide a way for both spouses to have enough money to maintain, as nearly as possible, the standard of living they attained during the marriage.

Under the Illinois divorce statutes, judges may grant a maintenance award for either spouse in amounts, and for periods of time, deemed to be fair.

In and of itself, that's kind of a nebulous statement. But the statute goes on to provide a substantial list of factors for the court to consider in deciding whether maintenance is appropriate in a particular case. These include:

  • each spouse's income and property, including marital property apportioned and non-marital property assigned to the spouse seeking maintenance in the final divorce order
  • each spouse's needs
  • each spouse's present and future earning capacity
  • 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
  • both spouses' ages and their physical and emotional condition
  • 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 license 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. (750 Ill. Comp. Stat. §504 (a).)

As to the amount and duration of alimony, the court will normally apply certain statutory guidelines. However, if the court believes it's warranted, it can choose to deviate from those guidelines. (750 Ill. Comp. Stat. §504 (b-1).) The amount of alimony is based on the respective income of the spouses. As to duration, the length of the marriage is typically the determinative factor.

In cases involving the issue of maintenance, the court must state its reasons for awarding or not awarding it. If the court deviated from the guidelines, it's required to state what the amount of maintenance would have been under the guidelines, and why it chose to deviate from them. Finally, the court must designate the type of alimony awarded, such as fixed-term (for a specific period of time), indefinite (no set end date), and reviewable (a specific period, but subject to later review by the court). (750 Ill. Comp. Stat. §504 (b-2).)

What Role Does Adultery Play in an Illinois Divorce?

None. The modern trend in American divorce law is toward "no-fault" divorce. No-fault divorce is the kind you get when the marriage is over but neither spouse wants to point a finger of blame at the other. Illinois is one of the few states that only permit no-fault grounds (reasons) for divorce. In other words, you can't use the typical fault-based grounds, such as cruelty, desertion, or adultery as a basis for seeking a divorce.

To obtain a no-fault divorce, Illinois requires proof that "irreconcilable differences" have caused the irretrievable breakdown of the marriage, and the court determines that efforts to reconcile have failed, or that future attempts at reconciliation would be impractical and not in the family's best interests. If the spouses have lived separate and apart for a continuous period of at least six months immediately prior to the entry of the judgment of divorce, there's an irrebuttable presumption (meaning it can't be refuted) that the spouses have met the requirement of irreconcilable differences. (750 Ill. Comp. Stat. §401 (a).)

Is Adultery a Crime in Illinois?

Although it can't be used as a basis for divorce, adultery in Illinois is a violation of the state's penal code. Under 720 Ill. Comp. Stat. §11-35, it's considered a Class A misdemeanor.

How Does Adultery Affect Alimony Awards in Illinois?

It doesn't. The relevant alimony statute, referenced above, specifically states that a court must decide on alimony "without regard to marital misconduct". The applicable requirement is that the decision has to "just", meaning fair and reasonable.

Does Adultery Affect Custody or Child Support in Illinois?

Not usually. But when it comes to custody matters, judges have an obligation to prioritize the best interests of the child. So if a parent's adulterous behavior compromises a child's welfare, then that could certainly enter into a judge's ruling regarding custody (meaning who will make the major decisions in a child's life, and where the child will live). For example, if a parent neglects a child's care because that parent is focused almost entirely on an extra-martial affair, a judge may be less inclined to entrust the child's well-being to that parent.

Relating to child support, under the Illinois child support guidelines the amount of time a child spends with a parent who is obligated to pay child support can factor into a calculation of the support amount. As a rule, the more time those parents have with a child, the less child support they'll have to pay, because they're spending money on the child during parenting time. If the court denies or significantly limits parenting time because of a parent's adulterous behavior, the offending parent will likely be paying more money for support.