Divorce is confusing. What makes it even more confusing is that every state has different divorce laws. There is little to no standardization in divorce law across the country. To help yourself in the process, it is crucial that you know the specific divorce laws for your state, and an Illinois divorce has its own intricacies. Understanding the relevant laws allows you to focus on yourself and stop unneeded stress in its tracks.
Let’s look at six essential things a woman must know about an Illinois divorce.
1. Grounds for Illinois Divorce
Grounds for divorce means the reason behind the divorce. In Illinois, one person does not need to be at fault for ending the marriage because it is a “no-fault” divorce state. No-fault means that you do not need to prove that one person’s bad acts caused the divorce. Illinois divorce takes away the legal finger-pointing for ending a marriage because the law does not require one person to take responsibility for the divorce.
Luckily, this means there does not have to be a reason for the divorce aside from wanting it. This also means that a court will generally not consider things like affairs or abandonment when looking at property division and child custody. However, this does not apply in cases of domestic violence. (If you are dealing with any form of abuse, you will want to read “Leaving an Abusive Marriage? There are Steps to Take.”
A court will grant a divorce if there is an “irreconcilable difference,” meaning there are such significant differences or difficulties in the marriage that it is “irretrievably broken.” You can show irreconcilable differences in one of two ways: by proving that there is no way to repair the marriage, even though you have tried, or through a six-month separation. A court will consider spouses who have been separated for six months either within the same household or living apart as evidence of a breakdown of the marriage.
2. Alternatives to Divorce: Difficult but Not Impossible
Divorce is the most common way to end a marriage in Illinois. It is very difficult to qualify for an alternative to divorce. However, the two alternatives to divorce are annulment and separation. An annulment says that a marriage was never valid and must fall into a strict category. The court must find that this marriage is not valid and was never valid, and the state should never have recognized it. There are only four reasons the court can annul a marriage in Illinois.
- One spouse could not consent to be married. They cannot consent because of a mental disability, there is the undue influence of drugs or alcohol, or they were forced or tricked into marriage.
- One spouse cannot have sexual intercourse, and the other spouse did not know about it at the time of the marriage.
- One spouse was under 18 and did not have parental or judicial consent.
- Or the marriage was illegal. In Illinois, the couple is closely related by blood, or one person is still married to someone else.
The other alternative is a legal separation. Legal separation does not legally end the marriage, and it is not as simple as just separating from your spouse by living apart. It is a very technical term. A legal separation will allow the court to rule on child custody, support, and maintenance issues. It will not allow the court to rule on property division, and you cannot get remarried if you have a legal separation.
People might opt to get a legal separation in cases in which they might rely on their spouse’s benefits (like health insurance, social security, or pension), you are not fully ready for a divorce but know you legally need to be apart, or your religion prohibits divorce. If you get a legal separation, you can still file for a divorce if you choose to in the future (which you will need if you plan on eventually remarrying). For more on this, read “Choosing a Separation or a Divorce.”
Maintenance (also called alimony or spousal support) is rare in most divorce cases. First, the court will decide if this divorce requires alimony. The court will consider both parties’ emotional, physical, and mental conditions when determining if and how much maintenance it should award. As stated by Illinois law and the Bar association, the Illinois guidelines for maintenance are that maintenance awards are generally 30% of the paying spouse’s gross income minus 20% of the receiving spouse’s income. The court can always disregard the guidelines based on fairness factors that it deems important.
Understanding your finances and just how you will split things up is a good thing to speak to a financial person about. Check out, “Smart Moves for a Woman: A Financial Consultation for a Divorce.”
You may also wish to understand “Why You Don’t Want to Search for Cheap Divorce Lawyers,” when you are googling for legal support.
4. Residency and Waiting Period
To get a divorce, you or your spouse must be a resident of Illinois for at least 90 days before filing for a divorce. Only one person must be a resident of the state to file in Illinois.
Unlike many states, Illinois does not have a waiting period required to fill out the documents for a divorce. When you want a divorce, you or your lawyer can file it with the court immediately to start the process.
5. Property Division: Equitable, Not Equal
Marital property includes every single thing (and debt) that you and your spouse acquired during the marriage. This consists of all physical items, like cars and houses, as well as intangible things like stocks, investments, and bank accounts. There are few exceptions to marital property. These include student loan debt, inheritance, and gifts.
Illinois follows the equitable approach to property division. The equitable approach means that the court will divide all marital property equitably, which may or may not be an equal 50/50 split. The court can determine what is equitable based on the circumstances surrounding the items, and the marriage. It can consider each person’s financial contributions in getting the property and their personal financial situation.
Learn more about “Divorce Property Division: Community Property States v. Equitable Distribution States” if you are weighing which state to file your divorce in.
6. Child Custody
Like most states, Illinois courts look at the child’s best interest in determining custody arrangements. The judge will look at all the factors to determine the best placement for the child. Illinois strongly believes that it is best for the child to have consistent and long-term contact with both parents after a divorce. Additionally, unless the child is older, they generally do not have a say about where they want to live; that is for the judge to decide.
Unlike other states, Illinois law refers to child custody as “parental responsibilities.” Parental responsibilities refer to two different aspects of parenting, legal decision-making and parenting time. Decision-making accounts for who decides the child’s education, health, religion, extracurricular activities, etc. Unless the parents really cannot work together at all, both parents typically hold this power jointly. The other aspect is parenting time, in which the court will determine which parent will primarily physically care for the child.
Illinois has many specific laws regarding divorce in the state. In order to make your divorce process as simple as possible, you need to fully understand the laws and nuances of your state. If you are wondering what other steps you could be taking to ensure your divorce goes as healthily as possible, we encourage you to consult “The 55 Must Do’s on Your Modern Divorce Checklist.”
Elizabeth Newland is a third-year law student in Chicago who is committed to children and family rights. She aims to work in a family-related non-profit firm after graduation.
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