Divorce in Illinois is governed by the Illinois Marriage and Dissolution of Marriage Act. These statutes control basic requirements such as who may file, when they may file, grounds for divorce, and how to calculate and enforce child and spousal support.
In order to file for divorce, one spouse must have lived in Illinois for at least 90 consecutive days before filing with the court. Military service counts as residency if the spouse is stationed in Illinois.
In an Illinois fault-based divorce, the spouse filing for divorce, known as the petitioner, must prove one of 10 grounds for divorce. The grounds available include impotence, bigamy, adultery, desertion for more than a year, two years of excessive alcohol or drug abuse, attempted murder, physical violence, severe emotional abuse, felony conviction or infection with a sexually transmitted disease.
In no-fault divorce, when the parties have lived "separate and apart" for at least two continuous years and claim that "irreconcilable differences have caused the irretrievable breakdown of the marriage," the petitioner does not have to allege that his spouse is at fault. The court may waive the two-year separation requirement if, after a six-month separation, the parties sign sworn affidavits confirming their irreconcilable differences.
A divorce begins with the filing of a divorce petition prepared by an attorney or online legal document provider. The petition must include the two parties' names, age, occupation and residency, date and place of marriage, whether a divorce is pending in another state, grounds for the divorce, names, ages and residency of minor children, whether the wife is pregnant, proposed custody, child support and spousal support and any other relief sought. The petitioner must serve the respondent with a copy of all filed documents. The petitioner generally must get personal service through the sheriff or a process server. The respondent has 30 days to respond. Failure to respond may result in the court entering orders by default.
The law governs disposition of property and defines what is marital and non-marital property. Marital property typically includes all property acquired by the husband and wife during the marriage. Non-marital property includes property that belonged to either the husband or wife before the marriage or acquired during the marriage by gift or inheritance. Illinois uses the concept of equitable division. Unless the parties agree on dividing their property, the court will distribute the property in percentages the court thinks are fair to both parties.
Child and Spousal Support
Illinois has traditionally used a flat percentage of the noncustodial parent's income to determine child support. For example, for three children, the court would order the noncustodial parent to pay 32 percent of her income as child support. Spousal support is not a fixed percentage. The court weighs several factors when determining spousal support, including length of the marriage, standard of living during the marriage, tax consequences and spouses' earning capacity. Marital misconduct is not a consideration in calculating spousal support.
Child Custody and Visitation
The court will award joint or sole custody based on the best interests of the child. Illinois courts prefer joint custody unless specific facts show sole custody is in the best interest of the child. The court may also order parents to attend seminars on the effects of divorce on children during the divorce process. A visitation, or parenting time, arrangement may be established by parental agreement or court-ordered. The court encourages the parties to be flexible and allow both parents ample time with the children.
References & Resources
- Illinois Compiled Statutes: Illinois Marriage and Dissolution of Marriage Act
- Legal Information Institute: Clear and Convincing Evidence
- Law Firm of Kulerski and Cornelison: What Is Marital Vs. Non-Marital Property?
- Anderson & Boback: Illinois Divorce Laws and Proceedings
- Illinois Child Support Services: Calculating Child Support Obligation
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