Can I Waive the Length of Separation Requirements in an Illinois Divorce?

by Beverly Bird

    Illinois doesn't make it as easy to divorce as some other states. It recognizes no-fault grounds, but with a catch. The grounds are tied to a separation period; you don't have the option of simply telling the court that your marriage is over and immediately moving on with your life. However, if both you and your spouse really want out of the marriage, you can cooperate to shorten the separation period.

    Illinois No-Fault Divorce

    Illinois' no-fault ground is irreconcilable differences: Your marriage is broken beyond repair, counseling won't help and trying to reconcile would put unnecessary stress on you and your children. In most states that recognize irreconcilable differences as divorce grounds, you could file, begin the proceedings and divorce as soon as issues of property, children and support are resolved. In Illinois, you can file a petition for dissolution of marriage on no-fault grounds whenever you like, but your divorce won't be final until you and your spouse separate and live apart for two years.

    Separation Terms

    Under Illinois law, you and your spouse don't necessarily have to move to two separate residences when you separate. In 1989, the Illinois Appellate Ccourt ruled on the influential case of In re Marriage of Kenik and found that spouses moving to different areas of the home is sufficient, but within reason. In other words, if you're intent on ending your marriage, you should behave like it, maintaining separate bedrooms and clearly establishing separate lives.

    Waiver by Agreement

    If you and your spouse are in agreement that your marriage should end, Illinois allows you to jointly sign a waiver of the two-year separation period. When you do this, you effectively tell the court that neither of you intend to contest the irreconcilable differences grounds. This still doesn't mean you can divorce immediately, but it shortens the two-year period to six months.

    Options

    If your spouse won't sign a waiver of the two-year separation rule, you'll have to wait out the entire two years before your divorce can be final. However, you might have bigger problems than a long waiting period if your spouse refuses. This may be an indication that he doesn't want the divorce. In this case, he can file a motion with the court to request a conciliation conference. The motion essentially states that he believes your marriage is savable, and it's possible that a judge will order counseling in response. If you reconcile, even for a few days, the two-year period starts running all over again because the two years must be continuous. If you think it's possible that your spouse might not cooperate and sign the waiver, speak with an attorney to find out if you can file for divorce on one of Illinois' fault grounds. Most of these don't require any waiting period at all.

    About the Author

    Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.