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Adultery and Divorce In Illinois

Adultery and Divorce In Illinois

Divorce is a tragedy. When divorce is also imbued with the taint of adultery the divorce becomes twice as awful. Adultery complicates the already complicated matter of dissolving a marriage.  So, how should either party to an Illinois divorce deal with adultery. 

Adultery Is Not A Grounds For Divorce In Illinois

In the old days, there were a bunch of reasons you had to prove before an Illinois divorce court would grant you a divorce.  These reasons were myriad: abandonment, infertility, adultery, etc. 

Now, the only thing a person must prove to an Illinois divorce court in order to get a divorce is that they have irreconcilable differences between them.  To prove irreconcilable differences, one must simply allege that the differences exist and are irreconcilable.  If a divorce litigant is willing to present that allegation in an Illinois divorce court, they will always be believed.  

So, adultery will not be considered by a divorce judge.  A divorce judge in Illinois will not consider adultery in the calculations judges need to make to divide debts and assets, award support and allocated parenting time between divorced couples. 

Negotiation During An Illinois Divorce That Involves Adultery

Ninety five percent of divorces in Illinois are resolved without a trial or a judge’s substantive input.  The divorcing parties are able to mediate and negotiate amongst themselves to such an extent that no real litigation (resolution of issues through the courts) ever occurs.  

Mediating and agreeing on the terms of a divorce make the divorce process so much less painful than the alternative: a court battle. 

When one of the parties has committed adultery, then the requisite trust that is necessary for an honest mediation will, likely, not be available. Mediation may become a waste of time with no final result.  

When the parties are not willing or able to trust each other to live up to the terms of their divorce agreement then the parties must turn to court decisions and court enforcement to finalize their divorce.  Under these circumstances, no one walks out of the courthouse happy. 

Dissipation Of Assets And Adultery In An Illinois Divorce

The one way that adultery can significantly impact an Illinois divorce is if the adulterous spouse spent money on their boyfriend or girlfriend (the “paramour”). 

If marital money was spent on a paramour then that money will be deemed spent on a non-marital purpose.  This will be deemed “dissipation of assets.”

Any dissipation of assets will be used in the final calculation of division of assets and debts.  So, if one spouse dissipated $ 10,000 on an adulterous affair, the adulterous spouse will have their asset allocation reduced by the half of the dissipation, $ 5000.

Dissipation of assets sort of assumes that if the assets hadn’t been spent on an affair, the other spouse would have received their half.  This becomes the fairest way to resolve the issue of spending that occurred during an Illinois divorce.  

Adultery And Parenting Time In Illinois

Adultery is a severe faiiing of a parent’s character.  No one wants their child to be an adulterer. But, it will always be more important to keep a parent in a child’s life. The importance of maintaining the child-parent bond will always outweigh the danger of exposing a child to a parent’s adulterous ways. 

In an Illinois divorce with a child or children, parenting time shall be allocated “unless the court finds, after a hearing, that the parenting time would seriously endanger the child’s mental, moral, or physical health or significantly impair the child’s emotional development” 750 ILCS 5/602.7(d)

Is Adultery A Crime In Illinois? 

Yes.  Believe it or not adultery is still a crime in Illinois.  

“A person commits adultery when he or she has sexual intercourse with another not his or her spouse, if the behavior is open and notorious, and

(1) The person is married and knows the other person involved in such intercourse is not his spouse;  or

(2) The person is not married and knows that the other person involved in such intercourse is married.” 720 ILCS 5/11-35

The police will never, ever enforce this statute.  With all the murders and crime that occur in Chicago, Illinois and elsewhere throughout the state, the police are not going to investigate a marital affair. 

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