Illinois Divorce Law Summary

U.S. Divorce Laws are enacted by each state using their respective legislative process. Once legislation is enacted into law, the divorce courts in Illinois have the authority to manage the divorce proceedings, including spousal support and child support payments, custodial rights of parents, and the division of marital property.

Since state laws are repealed and amended frequently, it is always advisable to consult with an experienced divorce lawyer before making important decisions about your marriage.  

All states allow for “no-fault” divorce. Yet many courts still factor in the respective parties’ past behavior when determining the division of community property, debts, custody, support, and related issues. 

Read our expanded article on the divorce process for a deeper and more realistic understanding of the challenges you’re likely to face.

RESIDENCY REQUIREMENTS IN ILLINOIS

To file for a dissolution of marriage in the State of Illinois, one of the spouses needs to be a resident of this state or stationed in this state while a member of the armed services for 90 days preceding the commencement of the action or the making of the finding. The proceedings shall be held in the circuit court of the county where the plaintiff or defendant resides.

GROUNDS FOR DIVORCE IN ILLINOIS – NO FAULT

No-Fault: Irretrievable breakdown of the marriage based on: living separate and apart for a continuous period of 2 years or more, and the court determines that future attempts at reconciliation would be impracticable and not in the best interest of the family. A judge can limit the period of separation to 6 months in certain situations, as evidenced by testimony or affidavits of the spouses.

DIVORCE BASED ON FAULT IN ILLINOIS

Dissolution of marriage may also be granted on the following grounds: natural impotence, bigamy, adultery, desertion for the space of one year, including any period during which litigation may have pended between the spouses for dissolution of marriage or legal separation; habitual drunkenness or drug addiction for the space of two years; attempting to take the life of the other by poison or other means showing malice, or extreme and repeated physical or mental cruelty, the conviction of a felony or other infamous crime; or the respondent has infected the other with a sexually transmitted disease.

SEPARATION LAW IN ILLINOIS

Any person living separate and apart from their spouse without fault may petition for reasonable support and maintenance while living apart. Such action shall be brought in the county’s circuit court in which the respondent resides or in which the parties last resided together as husband and wife.

Proceedings are the same as for a dissolution of marriage. A proceeding or judgment for legal separation shall not bar either party from instituting an action for the dissolution of marriage. If the party so moving has met the requirements of Section 401, a judgment for dissolution shall be granted.

MEDIATION OR COUNSELING REQUIREMENT IN ILLINOIS

If the court concludes that there is a prospect of reconciliation, the court may order a conciliation conference at the request of either party or on its motion.

PROPERTY DIVISION IN ILLINOIS

Illinois is an equitable distribution state, meaning that marital property shall be divided equitably, not necessarily equally. For purposes of distribution of property, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage is presumed to be marital property, regardless of whether the title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, or community property.

Marital property shall be divided, without regard to marital misconduct, considering all relevant factors, including:

1. the contribution of each party to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property, including the contribution of a spouse as a homemaker or to the family unit;
2. the dissipation by each party of the marital or non-marital property;
3. the value of the property assigned to each spouse;
4. the duration of the marriage;
5. the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children;
6. any obligations and rights arising from a prior marriage of either party;
7. any antenuptial agreement of the parties;
8. the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
9. the custodial provisions for any children;
10. whether the apportionment is in place of or in addition to maintenance;
11. the reasonable opportunity of each spouse for future acquisition of capital assets and income; and
12. The tax consequences of the property division upon the respective economic circumstances of the parties.

ALIMONY & MAINTENANCE IN ILLINOIS

The court may grant a temporary or permanent maintenance award for either spouse in amounts and periods as the court deems, without regard to marital misconduct, in gross or for fixed or indefinite periods, and the maintenance may be paid from the income or property of the other spouse after consideration of all relevant factors, including:

1. the income and property of each party, including marital property, apportioned and non-marital property assigned to the party seeking maintenance;
2. the needs of each party;
3. the present and future earning capacity of each party;
4. any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having foregone or delayed education, training, employment, or career opportunities due to the marriage;
5. the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party can support themself through suitable work or is the custodian of a child making it ideal that the custodian does not seek employment;
6. the standard of living established during the marriage;
7. the duration of the marriage;
8. the age and the physical and emotional condition of both parties;
9. the tax consequences of the property division upon the respective economic circumstances of the parties;
10. contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse;
11. any valid agreement of the parties; and
12. Any other factor that the court expressly finds to be and equitable.

SPOUSE’S LEGAL NAME CHANGE

Upon request by a wife whose marriage is dissolved or declared invalid, the court shall order her maiden name or a former name restored.

CHILD CUSTODY IN ILLINOIS

The court shall determine custody per the best interest of the child.

The court shall consider all relevant factors, including:

1. The wishes of the child’s parent or parents as to his custody;
2. The wishes of the child as to his custodian;
3. The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interest;
4. The child’s adjustment to his home, school, and community;
5. The mental and physical health of all individuals involved;
6. The physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person;
7. The occurrence of ongoing or repeated abuse, whether directed against the child or directed against another person; and
8. The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
9. Whether one of the parents is a sex offender.

The court may enter an order of “joint custody custody” if it determines that such an arrangement would be in the best interests of the child, taking into account the following: 

(1) The ability of the parents to cooperate effectively and consistently in matters that directly affect the joint parenting of the child. “Ability of the parents to cooperate” means the parents’ capacity to substantially comply with a Joint Parenting Order.

The court shall not consider the inability of the parents to cooperate effectively and consistently in matters that do not directly affect the joint parenting of the child;

(2) The residential circumstances of each parent; and

(3) All other factors which may be relevant to the best interest of the child. The child’s physical residence in joint custodial situations shall be determined by: (1) express agreement of the parties; or (2) an order of the court based on the best interests of the child