Obtaining a divorce in Illinois requires a clear understanding of the legal requirements and procedures that apply. This information helps you make informed decisions and ensure a smooth transition into the next chapter of your life.
Illinois Divorce Requirements
You or your spouse must have been a resident of Illinois for at least 90 days before filing a Petition for Dissolution of Marriage/Civil Union. You are not required to be separated for any period of time before filing, and there is no mandatory waiting period after the case begins before the court may enter an order finalizing the divorce.
It’s common practive to file your case in a county near where you or your spouse live, but you may file it in any Illinois county. Filing in a smaller county can reduce filing costs or help avoid the delays that plague areas with a heavy backlog of cases.
Types of Divorce and Separation in Illinois
All divorces in Illinois are no-fault. Spouses do not need to prove to the court any grounds or reasons that justify ending the marriage, and you do not need your spouse to agree to a divorce. The types of divorce proceedings available in Illinois are as follows:
- Uncontested divorce. If both spouses agree on all divorce-related matters, including the division of property and assets, child custody/parenting plan arrangements and spousal support, they can pursue an uncontested divorce. In many cases, spouses who do not initially agree are able to negotiate agreements through their lawyers or using a third-party mediator before submitting them to the court. The judge reviews and approves the agreements before entering them as part of the final divorce decree.
- Joint simplified divorce. Spouses who meet all the requirements may jointly file a simplified version of an uncontested divorce. This fast, low-cost option is available to spouses who were married less than eight years, have no children or real property (such as a house), have minimal shared marital property and meet several other criteria. They jointly complete and submit a packet of paperwork to the court, a judge reviews and approves their agreements and the court enters a final order of divorce.
- Contested divorce. If spouses can’t agree on the terms of their divorce and must ask a court to decide the issues, the divorce proceeds as contested. Like other civil trials, this type of proceeding can involve multiple hearings, expert testimony, contested motion practice and trial to determine the equitable division of marital property, spousal and child support and parenting issues. Complicated divorce cases can take many months, or even years, to resolve.
An Illinois court grants a divorce when the evidence shows that irreconcilable differences have caused the breakdown of the marriage with no hope of reconciliation. This burden is met automatically if the parties have lived separate and apart for six or more continuous months immediately before the entry of the divorce judgment.
Child Custody, Visitation and Support in Illinois
Rather than implementing boilerplate custodial agreements, Illinois courts encourage parents to create a customized parenting plan that allows the child to have frequent and continuing contact with both parents. This plan should set out parental responsibilities, including a custodial schedule and how to allocate decision-making authority regarding the child’s education, health, religion, extracurricular activities and other important matters.
An experienced family lawyer can help negotiate terms and craft an agreement for your family. If parents can’t agree privately, the court will order them to attend mediation. An experienced, neutral mediator can often help parents agree on a plan that works for their family situation. If mediation is unsuccessful, a judge makes decisions based on their own assessment of the child’s best interests.
Illinois requires both parents to support their children financially after a divorce. The statutory child support guidelines are only a starting point to determine how much support a parent must pay. The court also considers the financial needs and resources of the child and each parent, the child’s emotional and physical condition and any other factors the court decides are relevant to the child’s welfare.
Property Division in Illinois
Not all property owned by spouses is considered marital property. There are many statutory exceptions, including inheritances, property owned before the marriage and property excluded in a prenuptial agreement. Property acquired by either spouse during the marriage is presumed to be marital property, even if only one spouse is listed as its owner, unless a spouse presents evidence proving otherwise.
If the parties can agree on how to divide their marital property, they and their attorneys can draft a marital settlement agreement for the court to review and approve. Otherwise, the judge will use the principle of equitable distribution. This means dividing all marital assets and debt fairly, but not necessarily equally.
Judges don’t consider either spouse’s behavior in deciding how to distribute marital property. To divide marital property, Illinois law directs a judge to consider several factors, including:
- Each spouse’s contribution to acquiring the property
- Whether either spouse wasted or needlessly spent marital assets (“dissipation”)
- The value of the property assigned to each spouse
- How long the marriage lasted
- Each spouse’s anticipated financial situation post-divorce
- Any obligations and rights of a spouse from another marriage
- Any prenuptial or postnuptial agreements
- Each spouse’s age, health, skills and occupation
- The needs of each spouse
- How custody is assigned
- Whether a spouse will be receiving spousal maintenance
- Each spouse’s financial prospects
- The tax consequences of the property division
Illinois judges have a great deal of discretion in deciding how to divide assets and debts between divorcing spouses. An experienced, effective Chicago divorce lawyer can help you protect your assets and advocate for a favorable division of marital property.
Illinois judges also have the discretion to award maintenance (also known as spousal support or alimony) if they believe it is appropriate. Maintenance is intended to help a financially disadvantaged spouse support themselves and live independently following a divorce. It can be awarded to either spouse.
The judge can award the amount and duration of maintenance they feel is appropriate. The court does not consider any marital misconduct or wrongdoing by either party when making this determination. Instead, the law directs it to consider factors including:
- Each spouse’s income and property
- Each spouse’s financial needs
- Each spouse’s age, health and skills
- The realistic present and future earning capacity of each spouse
- Whether a spouse’s earning capacity was negatively affected by performing domestic duties or forgoing opportunities because of the marriage
- Any impairment that paying maintenance would cause
- How much time a requesting spouse needs to become self-supporting
- The effect of any parental responsibilities on a spouse’s ability to seek or maintain employment
- The standard of living during the marriage
- How long the marriage lasted
- Tax consequences of maintenance for each spouse
- Any valid agreements about maintenance
- Any other factors that the court expressly finds to be just and equitable
As with the division of marital property, the judge has significant discretion to determine whether to award spousal maintenance. A skilled Chicago divorce lawyer can help you protect your rights and future financial stability.
Finalizing Your Divorce
After your spouse has been served or filed an appearance, the court will schedule a hearing or issue an order setting a case schedule. There is no mandatory waiting period before the court can issue an order granting your divorce, but the process can move slowly, especially in Cook County.
If you have children, the court will require you to schedule mediation with a court-approved mediator to discuss the terms of a parenting plan. You may also be able to agree on how to divide some or all of your property using mediation and private negotiation. Experienced Chicago divorce lawyers can help facilitate compromises and negotiate acceptable agreements for everyone involved.
The court will review any proposed agreements and hold a hearing to review the status of your case. If there are still outstanding issues, the judge will set your case for trial. The court may also issue temporary orders addressing financial or custodial issues until the trial is completed and final orders are issued.