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Henry Dahut, J.D.
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Henry Dahut is a licensed California trial attorney. Over the course of his 25-plus years practicing law, Henry has represented and counseled countless clients in legal trouble.
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The Illinois divorce topics covered in this divorce law summary include:
- Illinois Residency Requirements
- Illinois Grounds For Divorce – No-Fault
- Illinois Property Division – Equitable Distribution
- Illinois Spousal Separation Laws
- How Illinois Determines Child Custody
- How Illinois Determines Child Support
- How Illinois Determines Spousal Support
- Divorce Mediation
- Legal Name Change
Introduction
According to the Centers for Disease Control and Prevention, the national average divorce rate in the U.S. in 2022 was 2.4 per 1,000 people.
By contrast, Illinois boasts one of the lowest divorce rates in the country, standing at a mere 1.1 per 1,000 people.
With the decline in divorce nationwide, we have also seen an increase in people getting married. These positive trends could be due to more progressive laws being enacted by the 50 states.
It turns out that Illinois is no stranger when it comes to enacting progressive new laws.
Major Changes to the Illinois Marriage Act
Divorce in Illinois is now governed by the Illinois Marriage and Dissolution of Marriage Act.
The Illinois General Assembly recognized the dramatic changes in family and societal values and enacted major changes to its matrimonial laws.
According to the Illinois Bar Association, the state had finally accepted the fact that marriages do not always work out and that when a divorce occurs, the focus should be on the needs of the children and the parties rather than focusing on which party was at fault for the breakup of the marriage.
This recognition led Illinois to reject its fault-based approach to divorce. It finally recognized that continuing to litigate “fault” in a broken marriage wastes valuable time and money and concluded that abandoning it would promote more cooperation between the parties and a more favorable outcome from the divorce process.
Illinois Divorce Law Summary:
The purpose of our Illinois divorce law summary is to provide you with a basic outline of Illinois divorce law and to remind our readers that state laws are commonly amended and updated.
While this summary is a good starting point for understanding Illinois’s basic divorce laws and processes, it is not intended to be a substitute for obtaining the professional advice of an experienced Illinois divorce attorney who will evaluate your case’s specific facts and issues and discuss your goals.
The first divorce topic we will cover is the Illinois divorce residency requirements.
Residency Requirements
To file for divorce in Illinois, at least one of the spouses must have lived in the state for at least 90 days before filing the petition. If children are involved, they must have lived in Illinois for at least six months.
The proceedings shall be held in the court of the county where the plaintiff or defendant resides.
Grounds for Divorce
In Illinois, the grounds for divorce have been simplified by the state’s adoption of no-fault grounds, which means that the court does not require either party to prove the other spouse’s wrongdoing to grant a divorce.
Either party need only assert that irreconcilable differences exist. Irreconcilable differences are defined as issues between the spouses that have caused the irretrievable breakdown of the marriage, making it impossible for the couple to continue living together as husband and wife.
Before Illinois adopted the no-fault approach, the state only recognized fault-based grounds for divorce, which included:
- Adultery
- Desertion
- Habitual Drunkenness
- Drug Addiction
- Extreme Physical Cruelty (Learn About Restraining Orders)
- Extreme Mental Cruelty
- Conviction of a Felony
- Infection with a Sexually Transmitted Disease
Legal Separation
In Illinois, legal separation allows married couples to live separately and obtain court orders for issues like child custody, support, and property division while remaining legally married. It is often chosen for personal, financial, or religious reasons.
Spouses can negotiate a separation agreement that outlines the terms of their separation. This agreement can include provisions for:
- Allocation of parental responsibilities and parenting time
- Child support and spousal maintenance
- Division of marital property and debts
- Any other relevant issues
If the spouses reach an agreement, it can be submitted to the court for approval and incorporated into the legal separation order.
Mediation
In Illinois, divorce mediation is considered a valuable tool for helping couples resolve their disputes promptly, respectfully, and efficiently.
Mediation is a process where a neutral third-party mediator assists the divorcing couple in negotiating and reaching agreements on various issues such as property division, child custody, and support.
If you choose to mediate your divorce, mediators typically charge hourly rates ranging from $100 to $300 per hour or more. Some counties may offer court-sponsored mediation services at a reduced cost or for free.
Property Division
Illinois is an equitable distribution state, meaning marital property shall be divided equally, not necessarily equally. The goal of equitable distribution is to ensure a fair division of property that reflects the contributions and needs of both spouses.
The court will consider a variety of factors to achieve a fair and equitable division of marital property, including:
- Contribution to the Marital Estate: This includes financial and non-financial contributions, such as homemaking and child-rearing.
- Value of Property Assigned to Each Spouse: This includes considering the value of each spouse’s non-marital property.
- Duration of the Marriage: Traditionally, the longer the marriage, the more equal the division of assets will be.
- Financial Circumstances of Each Spouse: This includes each spouse’s income, earning potential, and financial needs.
- Prior Marital Agreements: This includes prenuptial or postnuptial agreements stating the division of property upon dissolution of the marriage.
- Custodial Needs of the Children: These factors are in the children’s best interests, such as having a stable and safe home environment.
- Age, Health, and Occupation: The court examines each spouse’s age, health, occupation, and employment status.
- Spousal Support (Alimony): The court will consider the amount of alimony awarded to a spouse, if any.
- Other Factors: The court has the discretionary power to consider any other factor relevant to equitable marital property distribution. One such factor is the court discovering that a spouse was hiding property.
Alimony – Spousal Maintenance
In Illinois, alimony, also known as spousal maintenance, is financial support paid by one spouse to the other after a divorce. The purpose of alimony is to help the recipient spouse maintain a standard of living similar to that enjoyed during the marriage.
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:
- The income and property of each spouse, including marital property divided during the divorce.
- The financial needs of each spouse.
- The current and potential future earning capacity of each spouse.
- The standard of living established during the marriage.
- The length of the marriage.
- The age, physical, and emotional health of both spouses.
- Each spouse contributes to the marriage, including homemaking, child care, education, and career-building of the other spouse.
- The time needed for the recipient spouse to acquire education, training, and employment to become self-sufficient.
- The tax implications of alimony for both parties.
- The presence of prenuptial or postnuptial agreements regarding alimony.
Child Custody
The court shall determine the division of custody based on the child’s best interest.
In Illinois, the child custody determination process is referred to as the allocation of parental responsibilities and parenting time.
The court considers numerous factors to determine what arrangement serves the best interests of the child:
- The child’s preferences may be considered depending on the child’s age and maturity.
- Each parent’s preferences regarding decision-making and parenting time.
- The child’s adjustment to a new home, school, and community.
- The mental and physical health of all parties involved.
- The relationship between the child and each parent, including the amount of involvement each parent has had in the child’s life.
- Each parent’s past caretaking responsibilities and involvement with the child.
- Each parent’s willingness and ability to cooperate and facilitate a relationship between the child and the other parent.
- Any history of domestic violence, abuse, or neglect by either parent.
- Whether either parent is or has been a registered sex offender.
Legal Name Change
In Illinois, a spouse can request a name change during the divorce proceedings. The request is usually included in the divorce petition and, if granted, formalized in the final divorce decree. Should the name change not be included in the divorce proceedings, the spouse can obtain a name change after the divorce.
The decree then serves as an official legal document and can be used to update the individual’s name across various public and private records and institutions.
Illinois Divorce Attorney Kevin O’Flaherty Discussing Updates to Illinois Divorce Law:
Sources and References
C.D.C. NATIONAL DIVORCE STATISTICS
