While the Illinois legislature has not provided a clear-cut definition of mental cruelty, it has been described by the courts as, “a course of abusive and humiliating treatment calculated, or obviously of the nature, to torture, discommode, or render miserable the life of the opposite spouse, which conduct actually affects the physical or mental health of the spouse.” The focus is on the effect of the action on the harmed spouse rather than the action itself. In Illinois, a single, isolated instance of mental or verbal abuse does not provide the requisite grounds for divorce. The action must be repeated and have a long-term, damaging effect on the victim.
Absense of Provocation
In order to succeed on a claim for divorce based on mental cruelty in Illinois, the innocent spouse must have "clean hands." In other words, the harmful action of the aggressor spouse needs to have been delivered without provocation. This conclusion is highly fact-based and the court will look to whether a specific action or reaction was caused by the other spouse. Generally speaking, simply stating that one has been generous and considerate during the marriage is not enough to provide a defense.
Burden of Proof
If you are seeking to terminate the marriage on the basis of mental cruelty, you bear the burden of proving that your spouse did more than just humiliate and embarrass you on several occasions. Rather, you must show that his actions were either calculated or obviously meant to invoke these feelings. Further, the absence of provocation must be proved by a preponderance of evidence, which means that more than 50 percent of the evidence indicates that there was no provocation.
Although divorce for mental cruelty does not affect property distribution or alimony, your spouse might contest the divorce and deny the allegations if he believes reconciliation is possible. Fault grounds, such as mental cruelty, can be accomplished without the two-year period of separation for no-fault divorce and can provide a quicker avenue for the victim spouse to get out of the marriage. However, proving mental cruelty can be difficult.