In Illinois, courts have abandoned the old concept that only an innocent spouse may file for divorce—Illinois is a "no-fault" divorce state.
In the past, Illinois held on to the traditional grounds for divorce (also called "dissolution" in Illinois), like adultery, cruelty, or impotence. However, in 2016, lawmakers eliminated the option to file a fault-based divorce. Now, there's no other option but a no-fault divorce in Illinois—meaning that the court will not consider whether a spouse's bad acts resulted in the end of the marriage.
"Irreconcilable differences" is the main no-fault ground for divorce in Illinois. Simply put, this means that you and your spouse no longer get along, you have tried to reconcile and failed, and further attempts at reconciliation would be impracticable and not in the best interests of the family. (750 Ill. Comp. Stat. § 5/401(a) (2022).)
Demonstrating irreconcilable differences is straightforward if you and your spouse have lived separate and apart continuously for six months preceding the entry of judgment: There is an irrebuttable presumption that the requirement of irreconcilable differences has been met. (750 Ill. Comp. Stat. § 5/401 (a-5) (2002).) In other words, once you and your spouse have lived apart for six months, the court must accept as true that you have the legal grounds to issue a divorce decree.
"Separate and apart" doesn't necessarily mean you and your spouse have lived under different roofs during those six months. Courts recognize that couples might need to maintain the same household during a divorce, whether for financial reasons or family reasons. So if you and your spouse are separated but continue to reside in the same house, the court might require you to provide evidence (such as sworn testimony) that you have lived together like roommates—without marital relations.
If you haven't lived separate and apart for six months, you can still get divorced. When both spouses agree that the marriage is irretrievably broken and state this in the divorce complaint, they usually won't have to provide more information to the court. When one spouse disagrees that the marriage is irretrievably broken, the court might simply have the spouse seeking the divorce state under oath that the couple has irreconcilable differences and that there's no chance they will reconcile.
Even though an Illinois judge won't consider any information about a spouse's bad acts for purposes of finding grounds for granting a divorce, a judge might consider fault when deciding one of the following matters.
The significant issues that typically come up in divorce cases include:
When spouses can't agree on one or more of these issues, they'll have to fight it out in court where a judge will decide for them under the principles of Illinois law. Most couples in this situation hire a family law attorney, and end up spending a significant amount of money arguing in court.
When spouses agree on how to resolve all of the issues in their divorce, they can get an uncontested divorce. Uncontested divorces are generally far less expensive and reach resolution faster than traditional, contested divorces. To get an uncontested divorce, the couple will need to put their agreement in a writing called a marital settlement agreement and file it with the court. The judge must approve any settlement agreement, especially when it involves child custody and child support.
Spouses who agree on the terms of their divorce and who meet certain requirements can file for an expedited form of dissolution called "joint simplified dissolution." To qualify for a joint simplified dissolution, the following must be true:
(750 Ill. Comp. Stat. § 5/452 (2022).)
If you're living separate and apart from your spouse, you may petition (ask) a court to grant you a legal separation and reasonable maintenance. A judgment for legal separation doesn't prevent either spouse from filing for divorce later, but does prohibit either spouse from remarrying.
A legal separation has many of the same characteristics of a traditional divorce; however, in the end, the parties remain legally married. Legal separation is uncommon but still used when couples can't divorce for personal or religious reasons. (750 Ill. Comp. Stat. § 5/402 (2022).)