Grounds for Divorce in Illinois

In Illinois, courts have abandoned the old concept that only an innocent spouse may file for divorce—Illinois is a "no-fault" divorce state.

Are There Fault-Based Grounds for Divorce in Illinois?

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.

What Are the Grounds for a No-Fault Divorce in Illinois?

"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.

Do Illinois Courts Ever Consider Fault in an Illinois Divorce?

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.

• Child custody and visitation. For example, courts will assign custody based on what's in the best interests of the child, and will certainly consider whether a parent has been abusive, neglectful, or has otherwise exhibited bad behavior that could have a harmful effect on the child.
• Division of property. Although the law specifically prohibits judges from analyzing fault when dividing property in an Illinois 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) (2022).)

What are the Major Legal Issues in an Illinois Divorce?

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

• property division (who gets what)
• child custody (including visitation)
• child support, and
• alimony (otherwise known as "maintenance" or "spousal support").

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.

Uncontested Divorce in Illinois

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.

What Is Joint Simplified Dissolution in Illinois?

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:

• neither spouse is requesting maintenance
• at least one spouse meets the state's residency requirement
• the marriage is irreconcilably broken
• there are no children (born or adopted) from the marriage, and neither spouse is pregnant by the other
• the marriage lasted no more than 8 years
• neither spouse has an interest in real property or retirement benefits, unless the retirement benefits are exclusively held in individual retirement accounts and the combined value of the accounts is less than $10,000
• the fair market value of all marital property (minus debts) is less than $50,000
• the spouses' combined gross annualized income from all sources is less than $60,000, and neither party has a gross annualized income of more than $30,000
• 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 (2022).)

What Is a Legal Separation in Illinois?

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).)