Illinois Divorce Laws

Illinois Divorce Laws
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Illinois Divorce Laws

 

RESIDENCY REQUIREMENTS AND WHERE TO FILE:

The court shall enter a judgment of dissolution of marriage if at the time the action was commenced one of the spouses was a resident of this State or was stationed in this State while a member of the armed services, and the residence or military presence had been maintained for 90 days next preceding the commencement of the action or the making of the finding.

The proceedings shall be had in the county where the plaintiff or defendant resides. [Based on Illinois Compiled Statutes 750 - Chapter 5 - Sections: 104 and 401]

LEGAL GROUNDS FOR DIVORCE: No Fault: That the spouses have lived separate and apart for a continuous period in excess of 2 years and irreconcilable differences have caused the irretrievable breakdown of the marriage and the court determines that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family. If the spouses have lived separate and apart for a continuous period of not less than 6 months next preceding the entry of the judgment dissolving the marriage, as evidenced by testimony or affidavits of the spouses, the requirement of living separate and apart for a continuous period in excess of 2 years may be waived upon written stipulation of both spouses filed with the court.

Fault Grounds: The following grounds for dissolution exist if, without cause or provocation by the petitioner:

  • The respondent was at the time of such marriage and continues to be naturally impotent naturally impotent.
  • The respondent had a wife or husband living at the time of the marriage.
  • The respondent had committed adultery subsequent to the marriage.
  • The respondent has willfully deserted or absented himself or herself from the petitioner for the space of one year, including any period during which litigation may have pended between the spouses for dissolution of marriage or legal separation.
  • The respondent has been guilty of habitual drunkenness for the space of 2 years.
  • The respondent has been guilty of gross and confirmed habits caused by the excessive use of addictive drugs for the space of 2 years, or has attempted the life of the other by poison or other means showing malice, or has been guilty of extreme and repeated physical or mental cruelty, or has been convicted of a felony or other infamous crime.
  • The respondent has infected the other with a sexually transmitted disease.

[Based on Illinois Compiled Statutes 750 - Chapter 5 - Section: 401]

LEGAL SEPARATION:

Any person living separate and apart from his or her spouse without fault may have a remedy for reasonable support and maintenance while they so live apart. Such action shall be brought in the circuit court of the county in which the respondent resides or in which the parties last resided together as husband and wife. In the event the respondent cannot be found within the State, the action may be brought in the circuit court of the county in which the petitioner resides.

Commencement of the action, temporary relief and trials shall be the same as in actions for dissolution of marriage. A proceeding or judgment for legal separation shall not bar either party from instituting an action for dissolution of marriage, and if the party so moving has met the requirements of Section 401, a judgment for dissolution shall be granted. [Based on Illinois Compiled Statutes 750 - Chapter 5 - Section: 402]

MEDIATION OR COUNSELING REQUIREMENTS:

If the court concludes that there is a prospect of reconciliation, the court, at the request of either party, or on its own motion, may order a conciliation conference. The conciliation conference and counseling shall take place at the established court conciliation service of that judicial district or at any similar service or facility where no court conciliation service has been established.

In an action for dissolution of marriage involving minor children, or in a post-judgment proceeding involving minor children, the court may on its own motion order the parties, excluding the minor children, to attend an educational program concerning the effects of dissolution of marriage on the children, if the court finds that it would be in the best interests of the minor children. [Based on Illinois Compiled Statutes 750 - Chapter 5 - Section: 404 and 401.1]

PROPERTY DISTRIBUTION:

Illinois is an equitable distribution state, meaning that marital property shall be divided equitably, not necessarily equally. For purposes of distribution of property, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, or community property. Marital property shall be divided, without regard to marital misconduct, considering all relevant factors, including:

  • The contribution of each party to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property, including the contribution of a spouse as a homemaker or to the family unit.
  • The dissipation by each party of the marital or non-marital property.
  • The value of the property assigned to each spouse.
  • The duration of the marriage.
  • The relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children.
  • Any obligations and rights arising from a prior marriage of either party.
  • Any post-nuptial agreement of the parties.
  • The age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties.
  • The custodial provisions for any children.
  • Whether the apportionment is in lieu of or in addition to maintenance.
  • The reasonable opportunity of each spouse for future acquisition of capital assets and income.
  • The tax consequences of the property division upon the respective economic circumstances of the parties.
Non-marital property is considered:
  • Property acquired by gift, legacy or descent.
  • Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent.
  • Property acquired by a spouse after a judgment of legal separation.
  • Property excluded by valid agreement of the parties.
  • Any judgment or property obtained by judgment awarded to a spouse from the other spouse.
  • Property acquired before the marriage.
ALIMONY/MAINTENANCE/SPOUSAL SUPPORT:

The court may grant a temporary or permanent maintenance award for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct, in gross or for fixed or indefinite periods of time, and the maintenance may be paid from the income or property of the other spouse after consideration of all relevant factors, including:

  • The income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance.
  • The needs of each party.
  • The present and future earning capacity of each party.
  • Any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage.
  • The time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment or is the custodian of a child making it appropriate that the custodian not seek employment.
  • The standard of living established during the marriage.
  • The duration of the marriage.
  • The age and the physical and emotional condition of both parties.
  • The tax consequences of the property division upon the respective economic circumstances of the parties.
  • Contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse.
  • Any valid agreement of the parties.
  • Any other factor that the court expressly finds to be just and equitable.

[Based on Illinois Compiled Statutes 750 - Chapter 5 - Section: 504]

SPOUSE'S NAME:

Upon request by a wife whose marriage is dissolved or declared invalid, the court shall order her maiden name or a former name restored. [Based on Illinois Compiled Statutes 750 - Chapter 5 - Section: 413]

CHILD CUSTODY:

The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:

  • The wishes of the child's parent or parents as to his custody.
  • The wishes of the child as to his custodian.
  • The interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest.
  • The child's adjustment to his home, school and community.
  • The mental and physical health of all individuals involved.
  • The physical violence or threat of physical violence by the child's potential custodian, whether directed against the child or directed against another person.
  • The occurrence of ongoing or repeated abuse, whether directed against the child or directed against another person.
  • The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
  • Whether one of the parents is a sex offender.

The court may enter an order of joint custody if it determines that joint custody would be in the best interests of the child, taking into account the following:

  • The ability of the parents to cooperate effectively and consistently in matters that directly affect the joint parenting of the child. "Ability of the parents to cooperate" means the parents' capacity to substantially comply with a Joint Parenting Order. The court shall not consider the inability of the parents to cooperate effectively and consistently in matters that do not directly affect the joint parenting of the child.
  • The residential circumstances of each parent.
  • All other factors which may be relevant to the best interest of the child. Nothing within this section shall imply or presume that joint custody shall necessarily mean equal parenting time. The physical residence of the child in joint custodial situations shall be determined by: (1) express agreement of the parties; or (2) order of the court under the standards of this Section.

[Based on Illinois Compiled Statutes 750 - Chapter 5 - Section: 602]

CHILD SUPPORT:

The court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable and necessary for his support, without regard to marital misconduct. Illinois uses income percentage model to calculate child support using the following guidelines:

  • One child equals 20% of supporting party’s net income.
  • Two children equals 28% of the supporting party’s net income.
  • Three children equals 32% of the supporting party’s net income.
  • Four children equals 40% of the supporting party’s net income.
  • Five children equals 45% of the supporting party’s net income.
  • Six or more children equals 50% of the supporting party’s net income.

The term "child" shall include any child under age 18 and any child under age 19 who is still attending high school. The above guidelines shall be applied in each case unless the court makes a finding that application of the guidelines would be inappropriate, after considering the best interests of the child in light of evidence including but not limited to one or more of the following relevant factors:

  • The financial resources and needs of the child.
  • The financial resources and needs of the custodial parent.
  • The standard of living the child would have enjoyed had the marriage not been dissolved.
  • The physical and emotional condition of the child, and his educational needs.
  • The financial resources and needs of the non-custodial parent.

[Based on Illinois Compiled Statutes 750 - Chapter 5 - Section: 505]