Divorce Based on Adultery in Illinois

By Beverly Bird

If your spouse has strayed, you might have good reasons for wanting to file for divorce on grounds of adultery -- but doing so might not result in more than some personal satisfaction. Illinois recognizes adultery as divorce grounds, but you could probably end your marriage much more quickly and economically if you filed on the state's no-fault grounds of irreconcilable differences instead.

If your spouse has strayed, you might have good reasons for wanting to file for divorce on grounds of adultery -- but doing so might not result in more than some personal satisfaction. Illinois recognizes adultery as divorce grounds, but you could probably end your marriage much more quickly and economically if you filed on the state's no-fault grounds of irreconcilable differences instead.

Effect on Property Division

The Illinois legislative code states unequivocally that courts must divide property in a divorce "without regard to marital misconduct." A judge can't punish your spouse for having an extramarital affair by giving you a greater share of marital property. However, an exception exists if your spouse squandered marital money or assets on his paramour. For example, if you once had $100,000 but your spouse spent $50,000 of that pursuing an affair, it wouldn't be fair for you to come out of the marriage with only a share of $50,000. An Illinois judge could conceivably award you the entire $50,000 because your spouse already wasted or dissipated the balance, and you might have received $50,000 – or half of $100,000 – if he hadn’t done that.

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Effect on Alimony

The law against considering marital misconduct also pertains to alimony, called spousal maintenance in Illinois. A judge can't punish your spouse for straying by ordering him to pay you alimony. This doesn't mean you won't receive it – it just means you won't receive it because your spouse committed adultery. Illinois bases alimony on issues such as the length of your marriage, your need for assistance, the lifestyle you enjoyed while you were married, and the earnings potential of both you and your spouse. If you meet these and other criteria, you might receive maintenance, but your spouse's affair won't have anything to do with it.

Effect on Custody

If you and your spouse are disputing custody of your children, the fact that he committed adultery probably won't affect a judge's decision in this regard either. Like all states, Illinois bases custody entirely on the best interests of the child, so its statutes do not allow a judge to consider marital fault or misconduct if it "does not affect the relationship with the child." Unless your spouse flagrantly exposed your children to his affair, his adultery won't affect custody.

Proving Your Grounds

If you file for divorce on grounds of adultery, you might have to prove to the court that your spouse had an affair. Grounds are required in every divorce – the legally acceptable reason you give the court to end your marriage. If you file on fault grounds and if your spouse decides to contest the grounds, you'd have to substantiate your allegation to the court's satisfaction at trial. You'd need evidence such as cell phone bills or credit card statements, or you'd have to hire a private investigator to gather visual evidence of the adultery. By contrast, you don't have to prove no-fault grounds in Illinois, although the state does require you and your spouse to live separately for a time before you can file for a no-fault divorce due to irreconcilable differences.

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Does a Spouse Having an Affair Affect the Distribution of Monies in a Divorce?

References

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When your spouse strays, your first instinct might be to seek revenge. You might be able to accuse her of adultery in your divorce complaint and let the world know she ended your marriage. Maybe the judge will agree that she's a despicable character and award you additional marital property or give you custody of your children. If you live in Maine, you'd be half right. You can file for divorce on grounds of adultery in this state, but it probably won't affect issues of property division or custody.

Is Adultery a Major Consideration in a Divorce in VA?

Some states are rather forgiving when it comes to divorce and adultery. These are typically the pure no-fault states that don't recognize any form of marital misconduct as grounds. However, Virginia isn't a pure no-fault state, and its laws regarding adultery might have a significant effect on your divorce.

How Long Does It Take to Get a Divorce for Adultery in New York?

In New York, just as in other states, the time required to get a divorce depends much more on whether you and your spouse can reach an agreement than on your grounds. This isn't to say that your grounds for divorce won't affect the timeline, however. If you file for divorce on grounds of adultery, it will probably necessitate a trial, so your divorce will take longer.

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