Getting a Divorce in Illinois? Divorce Law Cheat Sheet for the State of Illinois
1. What are the residency requirements for filing for divorce in Illinois?
To file for divorce in Illinois, one of you must have lived in Illinois or been stationed with the military in Illinois for the 90 days prior to filing for divorce.
2. Does Illinois have a waiting period?
For a no-fault divorce, you and you spouse must live apart for at least two consecutive years. This requirement can be waived in two ways:
- You and your spouse agree to waive the two-year requirement (in which case you only need to live apart 6 months).
- You state grounds for your divorce (in which case there is no waiting period).
3. Does the state have grounds for divorce?
Yes, and the list is quite extensive. The following are grounds for divorce in Illinois:
- Your spouse was impotent when you got married and continues to be so.
- Your spouse was already married to someone else when you got married.
- Your spouse has committed adultery (had an affair).
- Your spouse has deserted the other and been gone for at least a year.
- Your spouse has been habitually drunk for at least two years.
- Your spouse has been addicted to drugs for at least two years.
- Your spouse has been extremely and repeatedly mentally or physically cruel.
- Your spouse has been convicted of a felony or has been jailed.
- Your spouse has given you a sexually transmitted disease.
4. How does Illinois determine the division of property?
You and your spouse are encouraged to come up with a settlement on your own and present it to the court. If the settlement is not blatantly unfair, the court will generally accept it. If you can’t agree, the court will divide your property equitably, or fairly. The state limits its definition of marital property — to what either of you acquired after you were married. Even then, it allows some exceptions. These types of property are generally not included when the court weighs who gets what:
- Property that was a gift or inheritance property you received in exchange for property that you had before you got married.
- Property you received in exchange for property that you got as a gift or through an inheritance property you obtained after you were legally separated.
- Property that you both agree to leave out of the decision.
- Property obtained by a judgment awarded to one of you from your spouse.
- Property acquired before you were married.
So what property is looked at by the court?
Generally, anything that either of you acquired while you were married counts. Pension benefits and stock options obtained while you were married are generally considered marital property and should be divided equitably. Also, if you made your spouse co-owner of some property that would otherwise be excluded, the property might also be considered marital property.
When something is not clearly marital or non-marital property, the court will look at your situation on a case-specific basis and try to determine what goes where and with whom.When the court has determined what is to be divided, it will look at these factors to determine:
- What each of you did to increase or decrease the value of your property.
- How each of you has handled property in the past.
- The value of the property itself; how long you were married.
- The economic circumstances you each will face.
- Obligations you might have from a previous marriage.
- Your ages, occupations, employability and sources of income.
- The needs of your children.
- Whether maintenance (alimony) is involved.
- Your future ability to earn an income.
- What tax consequences might result from awarding the property to one of you or the other.
5. Does Illinois require mediation before a divorce is granted?
No, Illinois doesn’t require mediation as a rule before granting a divorce. The court may call for mediation when negotiations over parenting arrangements have broken down.
6. How does the state determine child custody?
Legal custody and physical custody are two different things. Legal custody outlines how involved each parent is in the major decisions of a child’s life — where a child goes to school, what faith he or she is raised in and other biggies.Physical custody addresses where a child will live and with whom. Generally, parents (and courts) choose sole physical custody for a child, since children benefit from stability, and joint physical custody would require a child to live in two different places.
Visitation (also called parenting time) is usually negotiated based your physical custody arrangement.The court expects you and your spouse to develop a parenting agreement together that addresses these issues and describes how you’ll handle any future disagreements or changes to these issues. If you and your spouse don’t decide on a parenting agreement, the court will decide for you.
The court generally will not grant joint legal or physical custody if both parents don’t agree to it. If the parents cannot come to an agreement on either matter, the court will decide for them. In determining what is in your child’s best interest, the court considers these factors:
- You and your spouse’s wishes.
- Your child’s wishes.
- Your child’s relationship with you and your spouse.
- Your child’s siblings and anyone else who might affect your child’s best interest.
- Your child’s adjustment to home, school and community; the mental and physical health of everyone involved.
- Physical violence or the threat of physical violence by your child’s potential custodian, whether directed against your child or against others.
- Incidents of ongoing or repeated abuse, whether directed against your child or against others.
- Whether each of you is willing and able to encourage a close relationship between the other parent and your child.
- Whether either of you is a sex offender.
The court may choose to interview your child privately, too, as well as other legal, medical or mental health professionals.
7. How does the state calculate child support?
The court sets a minimum level of child support based on the number of children you have. The guidelines are:
Number of Children and Percent of Supporting Party’s Net Income
One: 20 percent
Two: 28 percent
Three: 32 percent
Four: 40 percent
Five: 45 percent
Six or more: 50 percent
However, the court might vary from these guidelines if it considers doing so in your child’s best interest. In considering your child’s best interest, the court attempts to get a well-rounded picture. The court will consider:
- The financial resources and needs of your child.
- The financial resources and needs of the custodial parent.
- Your child’s standard of living had you stayed married.
- The physical and emotional condition of your child and your child’s educational needs.
- The financial resources and needs of the non-custodial parent.
Arrangements for health insurance for your child also might be considered in determining the amount of support paid.
8. How does the state determine and calculate alimony?
Alimony, also known as maintenance, may be awarded to either of you, if requested. In considering maintenance, the court will consider all these factors: your incomes and your marital and non-marital property; your needs; you and your spouse’s current and future abilities to earn an income; whether you or your spouse’s earning abilities are lessened because you devoted time to domestic duties or put your career or education on hold for the marriage; how long it would take you or your spouse to get an education and/or find a job and whether you can support yourself and/or a child while going to school or job-hunting; your standards of living while you were married; how long you were married; your ages and physical and emotional conditions; how the tax consequences of your division of property affected your economic situations; what help or contributions each of you might have made to your spouse’s education or career; any agreement the two of you have made; any other factor the court decides is fair,
9. Is there a waiting period before remarriage in Illinois?
No, you are free to remarry after the court delivers the final judgment ending your marriage.
FOR MORE INFORMATION
See the state statutes here. Click on Compiled Statutes, then scroll down to Rights and Remedies, and click on Families.
Illinois Legal Aid has a wealth of information on divorce and automated forms for simple divorces.
Southern Illinois University provides state divorce forms online here.
The information in this article was verfied by:
Attorney: Marie Fahnert
Years in Practice: Two
Law School: Northwestern School
Law Firm: Law Office of Fahnert, LLC
Concentration: Family law
Web site: fahnertlaw.com
E-mail: marie@fahnertlaw.com
Telephone Number: (312) 235-2352
Please note: Local and state laws change constantly, therefore this information is for educational purposes only. We do our best to keep state-specific information up-to-date, but please contact us to discuss your unique situation.
