Divorces present a unique opportunity for marital discord to be resolved by agreement. Illinois law looks favorably on couples that can mutually resolve issues related to property, support and custody. However, if one spouse blames the other for the breakdown of the marriage, or parties contest other aspects of the divorce, a judge will decide the matter.
In order to obtain a divorce in Illinois, at least one spouse must have lived in the state for at least 90 days prior to filing. Provided the residency requirement is met, a divorce action may be filed with the Circuit Court in the county in which either spouse resides. If the matter is filed in a county where neither spouse resides, the responding spouse must object in his or her written response; otherwise it is waived and the case will move forward anyway.
A party may file for divorce in Illinois alleging either fault or no-fault grounds. Fault grounds include adultery, desertion, and extreme mental or physical cruelty. In order to be successful on a fault-based claim, the filing spouse must prove to a judge that the wrongful act or acts occurred. The proof might be in the form of witness testimony or the responding spouse's own admission. Illinois also provides the no-fault ground of irreconcilable differences. This ground looks at whether the marriage has been irretrievably broken as a result of the parties not being able to get along. If parties agree, they attest to the marriage being broken and sign a written stipulation that they have lived separate and apart for at least six months. If only one party believes the marriage has broken down, the couple must live separate and apart for more than two years.
Property and Support
With regard to division of marital property, Illinois is an equitable distribution state. This means that assets and debts are allocated on a case-by-case basis to each spouse according to what is fair, as opposed to an even 50/50 split. If one spouse has a lower earning capacity, for example, a judge might award him a larger amount of property. Similarly, courts award alimony on a case-by-case basis according to a set of factors. These factors include the needs of each party, the duration of the marriage, and the age and physical condition of both parties.
When it comes to minor children, Illinois places importance on written agreements between the parties, known as parenting agreements or parenting plans. However, judges are required to make custody determinations based on what is in the best interests of the child, which could be at odds with what the parents want. Parenting agreements are generally considered binding unless found to be unconscionable or contrary to the child's best interests. Child support in Illinois is calculated based on a set of guidelines. The support amount is calculated based on a set percentage of the noncustodial parent's net income and number of children. A judge then has discretion to modify the award up or down based on the specific needs of the children.