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.

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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.

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Arkansas Laws for Separation
 

References

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Divorce & Legal Separation Laws in Pennsylvania

Technically, Pennsylvania’s statutes contain no mention of "legal separation." This is a bit misleading, however, because the state does recognize at least the concept of legal separation. If you and your spouse can agree to the terms of your separation in a written agreement, the state considers it binding upon both of you.

Separation Laws in Virginia

Separation is Virginia's version of a no-fault divorce, but the state is not very strict about its requirements. Other than the duration of your separation, Virginia imposes few rules for its terms. You don't have to file anything with the court to begin the separation period, and a written agreement between you and your spouse is optional.

New Hampshire Uncontested Divorce Requirements

An uncontested divorce is exactly what it sounds like: neither spouse is objecting to the dissolution of the marriage. However, New Hampshire takes this one step further. You and your spouse must also agree on every detail of how you’re going to separate your lives. If you can’t reach an agreement, your divorce is contested. Even if you and your spouse are only disputing one small detail, the law requires a judge to decide that one small detail for you.

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