Grounds for Divorce in Illinois

Learn about the process of starting your divorce case in Illinois, and whether the "grounds" for divorce really matter.

What are the Grounds for Divorce in Illinois?

In Illinois, courts have abandoned the old concept that only an innocent spouse may file for divorce. In the past, Illinois held on to the traditional fault grounds for divorce, like adultery, cruelty, or impotence. However, in 2016, lawmakers eliminated the option to file a fault divorce and now limit spouses to filing a no-fault divorce.

In other words, regardless of whether either spouse committed spousal misconduct or caused the breakdown of the marriage, the court will not let fault play a part in the divorce.

Does Fault Matter?

Historically, the fault grounds for divorce were:

  • impotence
  • bigamy (the other spouse had a wife or husband living at the time of the marriage)
  • adultery
  • 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 2016, Illinois abolished fault divorce, so spouses can no longer cite any of these fault grounds as the reason for their divorce. Fault may come into play, however, when courts are considering child custody and visitation matters.

Although the law specifically prohibits judges from analyzing fault when dividing property in a divorce, judges may evaluate whether or not one spouse dissipated marital assets during the marriage. For example, if one spouse spent marital funds on a gambling addiction or to fund an affair with a girlfriend or boyfriend, the court may award the other spouse more of the marital estate to make up for the loss of marital assets. The “injured” spouse must follow specific steps when claiming the other spouse dissipated marital assets. (750 Ill. Comp. Stat. § 5/503 (d).) See Illinois Divorce: Dividing Property for more information on the property division process in Illinois.

See Illinois Alimony FAQs for a complete description of the factors Illinois courts will consider when making decisions about alimony.

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 answer your spouse's claims of marital misconduct.

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 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).)

Do We Have to Wait Two Years Before Filing 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 before the entry of the divorce judgment, the court may waive the 2-year separation requirement, 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. (750 Ill. Comp. Stat. §5/401 (a-5).)

What are the Major Legal Issues in a Divorce?

The significant issues that typically come up in divorce cases include:

Spouses can agree in writing (sometimes called a "property settlement agreement" or "divorce agreement") to resolve all or some of the issues presented by their divorce case. The court must approve any divorce agreement, especially if it involves child custody and child support.

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. A contested divorce will cost more money and take longer to finalize than an uncontested divorce.

What Is Joint Dissolution?

If you and your spouse agree on all divorce-related issues, you may qualify for a streamlined divorce process called joint simplified dissolution. In Illinois, divorcing spouses qualify for the simplified process if:

  • neither spouse requests alimony from the other
  • at least one spouse meets the state's residency requirement
  • the reason for the divorce is that you and your spouse have irreconcilable differences
  • there are no children (born or adopted) from the marriage, and neither spouse is pregnant
  • the marriage lasted no more than 8 years
  • the couple does not have real property
  • neither spouse owns more than $10,000 in retirement benefits
  • the spouses have less than $50,000 in marital property
  • the spouses' combined gross income is less than $60,000
  • both spouses disclosed all assets and liabilities and exchanged tax returns, and
  • the spouses signed a written agreement dividing all assets and liabilities and allocate responsibilities for any companion animals. (750 Ill. Comp. Stat. § 5/452.)

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 or alimony. A judgment for legal separation will not 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.)

Resources

If you have questions about the no-fault or joint streamlined dissolution process, you should contact a local family law attorney in your area.

For more information, read Illinois Compiled Statutes, Chapter 750, Section 5.

You can visit the Illinois Supreme Court website for information and forms for filing a divorce.

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