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.
Historically, the fault grounds for divorce were:
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.
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:
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).)
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.
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:
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.)
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.