Illinois Divorce Law

Divorce and Legal Separation in Illinois


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Divorce and Legal Separation in Illinois

Illinois Divorce Basics

Divorce in Illinois is referred to as Dissolution of Marriage.

Residency Requirement:

To file for Dissolution in Illinois, one of the spouses must be a resident of Illinois for at least 90 days

Jurisdiction:

If the filing spouse has lived in the state for at least 90 days, but the other spouse never lived in Illinois or has never committed an act inside Illinois which would cause him/her to come under the jurisdiction of the court, although a court may grant a divorce, it does not have jurisdiction to order the non-resident spouse to do anything, such as pay child support, transfer property, or pay debts.

Civil Unions:

Any person who enters into a civil union in Illinois consents to the jurisdiction of the courts of the state for the purpose of any action relating to a civil union even if one or both parties cease to reside in the state.

Filing:

A Petition for Dissolution of Marriage may be filed in the circuit court in the county where either spouse resides. The Plaintiff, the filing spouse, must file a copy of the Petition on the Respondent, the other spouse. The Respondent has 30 days after being served to file an Answer to the Petition.

Civil Unions:

The provisions of the Civil Practice Law shall apply to all proceedings for Dissolution of a Civil Union. A proceeding for dissolution of a civil union or declaration of invalidity of a civil union shall be entitled "In re the Civil Union of ... and ...".

The initial pleading in all proceedings for dissolution or invalidity shall be termed a Petition. A responsive pleading shall be termed a Response. All other pleadings shall be denominated as provided in the Civil Practice Law.

The proceedings shall be had in the county where the Petitioner or Respondent resides or where the parties' certificate of civil union was issued, except as otherwise provided herein, but process may be directed to any county in the State. Objection to venue is barred if not made within such time as the Respondent's response is due. In no event shall venue be deemed jurisdictional.

Illinois Joint Simplified Dissolution Procedure:

Illinois provides for a streamlined, simplified dissolution procedure called the Illinois Joint Simplified Dissolution Procedure, if all the following conditions exist when the couple files.
  • Either party has met the residency requirement;
  • The couple has been married no longer than eight years;
  • The couple’s combined net assets are worth less than $10,000;
  • Neither party has an interest in real property;
  • The couple’s combined gross annual income from all sources is less than $35,000, and neither party has a gross annual income from all sources greater than $20,000;
  • There are no children of the marriage, either natural-born or adopted, and the wife is not pregnant by the husband;
  • Neither party is dependent on the other for spousal support, and both parties agree to waive any right to maintenance;
  • Irreconcilable differences have caused the irretrievable breakdown of the marriage and efforts at reconciliation have failed, or future attempts at reconciliation would be impractical and not in the best interests of the family;
  • The couple has been living apart for at least six months;
  • The couple has disclosed to each other all assets and their tax returns for all years of the marriage; and
  • The couple has executed a written agreement dividing all assets in excess of $100 in value and allocating responsibility for debts and liabilities between the parties.
If the couple meets these criteria, it may file the necessary paperwork with the court and set a hearing. If all requirements are met, the court will enter a judgment granting the dissolution.

Court-Mandated Classes:

In an action for Dissolution of Marriage involving minor children, or in a post-judgment proceeding involving minor children, the court reserves the right to order the parents to attend an educational program concerning the effects of dissolution of marriage on the children.

The program may be divided into sessions, which shall not exceed a combined total of four hours. The program will be educational in nature and is not designed for individual therapy. The fees or costs of these educational sessions will be paid by the parents.

Spouse’s Name:

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

Civil Union

The Illinois Religious Freedom Protection and Civil Union Act went into effect on June 1, 2011, making civil unions legal in the state of Illinois. This law allows same-sex and heterosexual couples to enter into civil unions and grants them the same legal obligations, responsibilities, protections and benefits provided to spouses in a marriage, whether they come from statute, administrative rule, policy, common law, or any other source of civil or criminal law. 

The law defines a civil union as a legal relationship between two persons, of either the same or opposite sex, established pursuant to the applicable law. It also allows for the use of the term, "party to a civil union", interchangeably with "spouse", "family", "immediate family", "dependent", "next of kin", and other terms that are meant to signify the spousal relationship.

A marriage between persons of the same sex, a civil union, or a substantially similar legal relationship other than common law marriage, legally entered into in another jurisdiction, shall be recognized in Illinois as a civil union.

Establishing a Civil Union

To establish a civil union in Illinois, the parties must meet the following requirements:
  • Both parties must be at least 18 years of age;
  • Neither individual may still be a party to a prior marriage or civil union or substantially similar legal relationship;
  • If either party was previously married or entered into a civil union or substantially similar legal relationship, he/she must provide the name, date, place and the court in which the marriage/union/relationship was dissolved or declared invalid, or the date and place of death of the former spouse/partner.
When an application has been completed and signed by both parties, applicable fees have been paid, and both parties have appeared before the county clerk, the county clerk shall issue a license and a certificate of civil union upon being furnished satisfactory proof that the civil union is not prohibited.

The license becomes effective in the county where it was issued one day after the date of issuance, and expires 60 days after it becomes effective. The certificate must be completed and returned to the county clerk that issued the license within 10 days of the civil union.

A civil union may be certified by any of the following:
  • A judge of a court of record;
  • A retired judge of a court of record (unless the retired judge was removed from office by the Judicial Inquiry Board); 
  • A judge of the Court of Claims;
  • A county clerk in counties having 2,000,000 or more inhabitants;
  • A public official whose powers include solemnization of marriages; or
  • In accordance with the prescriptions of any religious denomination, Indian Nation or Tribe or Native Group, provided that when such prescriptions require an officiant, the officiant be in good standing with his/her religious denomination, Indian Nation or Tribe or Native Group.

Legal Grounds for Divorce and Dissolution of Civil Unions

Divorce Grounds:

Illinois provides for several fault-based grounds for divorce and one no-fault method. The legal grounds for dissolution in the state are as follows:
      1. Impotency;

      2. Bigamy;

      3. Adultery;

      4. Abandonment for the period of one year;

      5. Habitual drunkenness or gross and confirmed habits caused by excessive drug addiction for the period of two years;

      6. An attempt on the life of one spouse by the other;

      7. Extreme and repeated physical or mental cruelty;

      8. Conviction of a felony or other infamous crime;

      9. Infection of one spouse by the other spouse with an STD; or

      10. The spouses have lived separate and apart for a continuous period of two years and irreconcilable differences have caused the irretrievable breakdown of the marriage, and the court determines that efforts at reconciliation have failed, or that future attempts at reconciliation would be impractical and not in the best interests of the family.

If the parties have lived separate and apart for a continuous period of at least six months before the entry of judgment dissolving the marriage, the two year minimum requirement may be waived upon written stipulation of both spouses filed with the court.

Civil Union Dissolutions:

A court shall enter a judgment of dissolution of a civil union if at the time the action is commenced it meets the grounds for dissolution set forth in the Illinois Marriage and Dissolution of Marriage Act. The provisions for Dissolution of Marriage shall also apply to a Dissolution of a Civil Union.

Declaration of Invalidity of Marriage and Civil Unions

Marriage Invalidity:

Formerly referred to as Annulment, this action is now known as a Declaration of Invalidity of Marriage.

A party may seek a Declaration of Invalidity of Marriage if one of the following conditions is met:
  • A party lacked capacity to consent to the marriage at the time of the marriage ceremony, either because of mental incapacity or infirmity or influence of alcohol, drugs, or other incapacitating substances, and the action is brought no later than 90 days after the spouse learns of the described condition;
  • A party was induced to enter into a marriage by force, duress or fraud involving the essentials of marriage, and the action is brought no more than 90 days after the fraud is learned of or the force or duress no longer exists
  • A party lacks the physical capacity to consummate the marriage, and at the time of the marriage the other party wasn’t aware of the incapacity, and the action is brought no later than a year after learning of this physical incapacity; or
  • A party was 16 or 17 years of age and did not have the consent of his/her parent or guardian, and the action is brought before the party reaches the age of majority.
Action for Declaration of Invalidity of Marriage may not be brought under these grounds after the death of the other spouse.

A suit may also be brought on the grounds of bigamy, for up to three years after the death of the first party to die by either party, the legal spouse in the case of bigamy, or the State’s Attorney.

Prohibited Civil Unions
  • Both parties have not yet attained the age of 18 years;
  • One of the parties has not dissolved a prior marriage or civil union or substantially similar legal relationship;
  •  A civil union between an ancestor and a descendent or between siblings, either half, whole blood or by adoption;
  • A civil union between an aunt or uncle and a niece or nephew, either half, whole blood or by adoption; and
  • The parties are first cousins.
The provisions of the Illinois Marriage and Dissolution of Marriage Act related to declaring a marriage invalid shall also apply to the declaration of invalidity of a civil union.

Property Division

Illinois is an equitable distribution state, which means marital property will be divided fairly and equitably, although not necessarily equally. Marital property is generally considered all property acquired by either spouse after the marriage.

All pension benefits, including those under the Illinois Pension Code, acquired by either spouse after the marriage presumed to be marital property, regardless of which spouse participates in the pension plan, unless these benefits were acquired by a method listed below as non-marital property.

All stock options granted to either spouse after the marriage, whether vested or non-vested or whether their value is able to be determined, are presumed to be marital property, unless they were acquired by a method listed below as non-marital property.

Non-marital property is defined as follows:
  • Property acquired by gift, legacy or descent;
  • Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent;
  • Property acquired by a spouse after a judgment of legal separation;
  • Property excluded by valid agreement of the parties;
  • Any judgment or property obtained by judgment awarded to a spouse from the other spouse;
  • Property acquired before the marriage;
  • The increase in value of property acquired in any of the above methods; and/li>
  • Income from property acquired by any of the above listed methods, if the income is not attributable to the personal effort of a spouse.
If non-marital property is commingled with marital property is may be transmuted to marital property.

The division of marital property shall be divided, without regard to marital misconduct, in just proportions with consideration of the following criteria:
  • The contribution of each party to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property;
  • The dissipation by each party of the marital or non-marital property assigned to each spouse;
  • The duration of the marriage;
  • 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 there for reasonable periods, to the spouse awarded custody of the children;
  • Any obligations and rights arising from a prior marriage of either party;
  • Any antenuptial agreement of the parties;
  • The age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each party;
  • The custodial provisions for any children;
  • Whether the apportionment is in lieu of or in addition to maintenance;
  • The reasonable opportunity of each spouse for future acquisition of capital assets and income; and
  • The tax consequences of the property division upon the respective economic circumstances of the parties.
If the court deems it necessary to protect and promote the best interests of the children, it may set aside a portion of the jointly or separately held estates of the parties in a separate fund or trust for the support, maintenance, education, physical and mental health, and general welfare of any minor, dependent, or incompetent child of the parties.

Maintenance

In an action for dissolution of marriage, legal separation, or declaration of invalidity of marriage the court may grant a temporary or permanent maintenance award for either spouse in amounts and for periods of time as determined by the court, without regard to marital misconduct.

Maintenance awards are determined with consideration of the following factors:
  • The income and property of each party;
  • The needs of each party;
  • The present and future earning capacity of each party;
  • Any impairment of the present and future earning capacity of the requesting party due to his/her devoting time to domestic duties, or having foregone or delayed education, training, employment, or career opportunities due to the marriage;
  • The time necessary to enable the requesting party to acquire appropriate education, training, and employment, and whether he/she is able to support him/herself through appropriate employment or is the custodian of a child, making it appropriate that the custodian not seek employment;
  • The standard of living established during the marriage;
  • The duration of the marriage;
  • The age, and physical and emotional condition of both parties;
  • The tax consequences of the property division upon each party’s economic circumstances;
  • Contributions and services by the requesting party to education, training, career or career potential, or license of the paying spouse;
  • Any valid agreement of the parties; and
  • Any other criteria that the court deems just and equitable.
No maintenance shall accrue during the period in which a paying spouse is incarcerated for failure to comply with the court’s order for the payment of this maintenance.

Child Custody and Support

Custody:

Although a couple may obtain a divorce in Illinois if one of the spouses has lived in the state for 90 days, the court may not grant either spouse custody of children of the marriage unless the children have lived in Illinois for six consecutive months.

Custody in Illinois is based on the best interests of the child(ren). When making this determination, the court shall consider all relevant factors, including the following:
  • The wishes of the child(ren)’s parent(s) as to his/her custody;
  • The wishes of the child(ren) as to his/her custodian;
  • The interaction and interrelationship of the child(ren) with his/her parent(s), his/her sibling(s) and any other person who may significantly affect the child(ren)’s best interest;
  • The child(ren)’s adjustment to his/her home, school and community;
  • The mental and physical health of all individuals involved;
  • The physical violence or threat of physical violence by the child(ren)’s potential custodian, whether directed against the child(ren) or directed against another person;
  • The occurrence of ongoing or repeated abuse;
  • The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child(ren);
  • Whether one of the parents is a sex offender; and
  • The terms of a parent’s military family-care plan that a parent must complete before deployment if a parent is a member of the U.S. Armed Forces who is being deployed.
Joint custody is generally the preferred form of child custody if the court determines that it would be in the best interest of the child(ren), while considering the following factors:
  • The ability of the parents to cooperate effectively and consistently in matters that directly affect the joint parenting of the child(ren);
  • The residential circumstances of each parent; and
  • All other factors which may be relevant to the best interest of the child(ren).
Joint custody does not imply equal parenting time. The physical residence of the child(ren) in joint custodial situations shall be determined by the express agreement of the parents; or an order of the court. A parent who has not been granted custody of his/her child(ren) is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would seriously endanger the child’s physical, mental, moral or emotional health.

Support:

Illinois bases child support guidelines on a Flat Percentage of Income Model. The child support calculations are based on the percentage of the net income of the obligor (the parent who pays the support). The income of the custodial parent is generally not taken into account.

Net income is determined by totaling all income from all sources, minus the following deductions:
  • Federal income tax;
  • State income tax;
  • Social Security (FICA payments);
  • Mandatory retirement contributions required by law or as a condition of employment;
  • Union dues;
  • Dependent and individual health/hospitalization insurance premiums;
  • Prior obligations of support of maintenance actually paid pursuant to a court order;
  • Expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income, medical expenditures necessary to preserve life or health, reasonable expenditures for the benefit of the child(ren) and the other parent, with the exception
The duty of support owed to a child includes the obligation to provide for the reasonable and necessary physical, mental and emotional health needs of the child. For purposes of child support, under Illinois law, a child is defined as any child under the age of 18, or any child under age 19 who is still attending high school.

How much child support a supporting parent pays from his/her net income is determined by statute. Marital misconduct is not a factor. The current percentages follow:
    20% for one child;
    28% for two children;
    32% for three children;
    40% for four children
    45% for five children; and
    50% for six or more children.
These guidelines shall be applied in each case unless the court makes a finding that they would be inappropriate, after considering the best interests of the child(ren) in light of the following evidence:
  • The financial resources and needs of the child(ren);
  • The financial resources and needs of the custodial parent;
  • The standard of living the child would have enjoyed had the marriage not been dissolved;
  • The physical and emotional condition of the child(ren), and his/her educational needs; and
  • The financial resources and needs of the non-custodial parent.

Legal Separation

If a couple lives separate and apart, any party, without fault, has the right to request and obtain reasonable support and maintenance from the other party. He/she may bring action in circuit court in the county where the Respondent resides or in which the parties last resided together as husband and wife. If the Respondent cannot be found in state, the action may be brought in the circuit court of the county in which the Petitioner lives.

Legal Separation procedures are the same as those for Dissolution of Marriage. A proceeding or judgment for Legal Separation doesn’t prohibit either party from seeking an action for Dissolution of Marriage.

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