Illinois

Illinois Divorce Guide

One of the most difficult, emotional experiences that a married individual goes through is his divorce. It does not help that the legal system is slow and frustrating as well. The following is meant to be a guide to help one understand and navigate the legal system as it pertains to divorces in Illinois.

While all Illinois circuit courts follow the Illinois Marriage and Dissolution of Marriage Act, each circuit also passes its own rules, which adds another layer of its own requirements to the divorce process. This guide will strictly deal with the state requirements and statute and will not delve into each individual circuit court’s practices.

Illinois Residency Requirements

Pursuant to the section 401 of the Illinois Marriage and Dissolution of Marriage Act, only one of the parties to the divorce has to be a resident of Illinois.  Section 401 goes on to state that said residency must be maintained for the next ninety (90) days after filing for divorce and before entry of a final Judgment of Dissolution.

However, either party can consent to jurisdiction if the above requirements are not technically met.  If you believe that neither party meets the residency requirement, then you or your attorney should make an objection with respect to Illinois’ jurisdiction over the matter immediately.  If said objection is not timely made, then any objection to the residency requirement could be considered waived.

Similarly, section 401 requires that the parties live separate and apart for a continuous period in excess of two (2) years or must be separated for at least six (6) months before Illinois will grant a divorce. Both of the above stated requirements can be waived by the parties. If the parties agree to waive the above separation requirements, then a divorce will be granted sooner than the above stated periods.

Illinois Grounds for Divorce

Finally, Illinois provides for irreconcilable differences as the grounds for divorce. In layman terms, this means that the parties have attempted to work through the issues in their marriage, but attempts to save the marriage have failed.

In the alternative, Illinois also provides for mental cruelty as grounds for divorce should the parties not consent to irreconcilable differences as the cause for the dissolution. Keep in mind however that should you and your attorney decide to pursue mental cruelty; the court will require testimony and evidence to prove mental cruelty before granting the divorce based on such grounds.

Marital Property in Illinois Divorce

In Illinois, the court will divide the estate of the parties on an equitable basis, which includes all assets and debts. This discretionary standard generally results in an equal division of the estate. However, the incomes, education levels, work experience and other factors play a role in the court’s decision with respect to the division of property.

Pursuant to section 503 of the Illinois Marriage and Dissolution of Marriage Act, all property acquired subsequent to the marriage is presumed to be marital property.

There are of course exceptions to this rule, which includes, among other things, (1) property acquired by gift, legacy or descent, (2) property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent, (3) property acquired by a spouse after a judgment of legal separation, and (3) property acquired before the marriage.

In Illinois, the foregoing exceptions would in turn cause the property to be characterized as non-marital property and therefore not subject to division by the court.

However, keep in mind that the presumption still exists as to the property’s status as marital as long as it was acquired subsequent to the marriage, such that the party claiming certain property as non -marital has the burden to prove that the property falls into one of the exceptions provided for by section 503.

If you are concerned that certain property acquired during the marriage may or may not be marital, you should bring this to the attention of your attorney immediately so that you can discuss the likelihood that the court will find in your favor or begin to pull together the evidence supporting your claim.

Similarly, just because you believe certain property to be non-martial, primarily because it was acquired prior to the marriage, you should discuss with your attorney. Just as there are exceptions to the finding of marital property, there are also exceptions to the finding of non-marital property.

As for the debts of the parties, the court will allocate on an equitable basis.  There is no specific requirement or rule that the court is required to follow when dividing the debts.  Also, even if you and your spouse have kept separate debt during the course of the marriage, if the debt was acquired subsequent to the marriage, the court will presume that it is marital property.

Divorce Settlement Agreements in Illinois

Generally, Illinois courts accept and enter the agreements of the parties without question. However, support issues (i.e. child support and maintenance) may be reviewable by the court upon its own motion or the motion of one of the parties. It is important to remember the foregoing as it could affect your ultimate agreement as to division of other property.

Spousal Maintenance | Alimony in Illinois

The court can award rehabilitative and permanent Illinois Maintenance. Rehabilitative maintenance is generally awarded when the receiving spouse needs a period of time to either complete his education or find employment.The court will either set a termination date or a review date.

When permanent maintenance is awarded, the receiving spouse will continue to collect maintenance until the paying spouse dies or the recipient gets remarried or cohabitates.

Upon motion of either party, the court will review the original maintenance award to determine whether there has been a significant change in the circumstances of either party, such that a change in the maintenance originally awarded is warranted.

Pursuant to section 504, the court will consider several relevant factors when making a determination as to whether maintenance should be awarded and what kind of maintenance should be awarded. Ultimately, the type, amount and period of time for a maintenance award is at the discretion of the court.  As such, there is no set formula used to determine same.

It is important that you review the facts of your case with your attorney and make a determination as to how to best approach maintenance whether it be preparing a defense to a maintenance argument or gather evidence to support a claim for maintenance.

Legal Separation in Illinois

The Illinois Marriage and Dissolution of Marriage Act also provides for legal separations. Similar to a divorce, an Illinois legal separation will divide the marital estate, determine custody and visitation, grant or deny maintenance and award child support.

Further, a legal separation is binding as it pertains to property division. However, items such as maintenance and child support can be reviewed should the parties decide to end their marriage through divorce.

If you and your spouse are contemplating a legal separation, it is best to discuss your options with an attorney, so that you can be advised as to whether it would be beneficial to obtain a legal separation or move forward with a divorce.