Illinois Divorce Questions

Illinois divorce attorneys provide answers to frequently asked questions with regards to divorce in Illinois and Illinois divorce laws.

What are the grounds for divorce in Illinois?

  • Impotence at the time of the marriage and thereafter;
  • Bigamy;
  • Adultery committed subsequent to the marriage;
  • Willful desertion or absenting for one year;
  • Habitual drunkenness for a period of two years;
  • Gross habits caused by the excessive use of addictive drugs for two years;
  • Attempt on the other spouse’s life;
  • Extreme and repeated physical or mental cruelty;
  • Conviction of a felony or other infamous crime;
  • Infection of the other spouse with a sexually transmitted disease;
  • The parties have lived separate and apart for a continuous period in excess of two years, 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; or
  • The parties have lived separate and apart for a continuous period of at least six months prior to the entry of judgment dissolving the marriage, and both parties agree to waive the two-year requirement.

The requirement of living “separate and apart” does not necessarily require that the parties be physically separated. Additionally, periods of living together while attempting reconciliation or continued living in the same residence after the breakdown of the marriage may be considered living “separate and apart” for purposes of the required separation period.

What is a divorce going to cost me? Can I afford it?

The cost of your divorce will depend on the nature and complexity of your case. Costs include legal fees, court costs, costs of document production, and depositions. As the issues that develop during a case will affect what is required to successfully litigate your case, it is impossible to predict exactly how much it will cost at the start of your case.

Simple uncontested cases will be less expensive, while more complex, adversarial cases will cost more. The less that is in dispute, the less you will spend in attorney’s fees and costs. On the other hand, if there is a strongly contested issue, you may incur additional costs and fees associated with property valuations, custody evaluations or appointment of a Guardian ad Litem for the children.

Do I really need to hire an attorney?

While it is not required that you be represented by an attorney, the issues that will be addressed in your case will have a significant and long-term effect on your life. Resolution of these issues, as well as the state laws and court procedures governing divorce, can be complex and overwhelming. Hiring an experienced family law attorney to work with you through the process is highly recommended to help you reach your desired outcome.

Does Illinois grant divorces based on marital fault?

While Illinois requires grounds for dissolving the marriage, the alleged marital fault or misconduct of either party is not considered in the division of property or in awards of maintenance. However, the financial misconduct of either party once the marriage has failed may be found to have “wasted” marital funds and that party may be required to reimburse the marriage for any such waste.

Can I get maintenance or will I have to provide maintenance to my spouse?

This will depend on the facts of your case. The court can order temporary or permanent maintenance to either spouse, without regard to marital misconduct. The court will consider a number of factors in determining maintenance, such as:

  • The income and property of each party;
  • The needs of each party;
  • The present and future earning capacity of each party;
  • The standard of living established during the marriage;
  • Any impairment to present and future earning power due to devotion of time to domestic duties or foregoing education, training, employment or career opportunities due to the marriage;
  • The standard of living established during the marriage;
  • The duration of the marriage; and
  • The age, physical and emotional condition of both parties.

Can I change my name at the time of divorce?

Under Illinois law, the wife can return to her maiden name as part of the final judgment, and the husband may not prevent her from doing so.

Can I get an annulment in Illinois?

Yes, in certain circumstances. In Illinois, an annulment is called a “declaration of invalidity of marriage.” It is a court order declaring that a marriage is not valid, and therefore should not be recognized by the state. An annulment is different from a divorce because a divorce is an order ending a valid marriage.

In Illinois, a marriage can be annulled if:

  • One of the parties to the marriage lacked capacity to consent to the marriage because she or he suffered a mental disability, was under the influence of alcohol or drugs, or entered into the marriage by force, duress or fraud;
  • One of the parties is not capable of sexual intercourse and the other party did not know of the incapacity at the time of the marriage;
  • One of the parties is less than 18 years old and did not have the consent of his or her parents or guardian, or judicial approval; or
  • The marriage was prohibited by law.

When can I file for divorce in Illinois?

There is no pre-filing waiting period in Illinois. A petition for dissolution can be filed as long as one of the spouses resides in Illinois on the date of filing. However, you or your spouse must have lived in Illinois for at least 90 days before the judgment of dissolution is entered. Therefore, you may live in Illinois less than 90 days before filing, but must meet the 90-day residency requirement by the time the judgment is entered.

However, if neither party lived in Illinois for 90 days prior to the filing, the petition may be subject to dismissal if another state already had jurisdiction or if Illinois does not have jurisdiction over both parties.

When is my case going to be over?

There is no way to know exactly how long it will take you to get a divorce. It depends on a number of factors, such as whether your case is contested, how busy the court docket is and whether you and your spouse can agree to settle any issues without a court hearing.

Do I have to go to court?

Even if the terms of the divorce are agreed upon in advance, the agreement must be presented to the judge. Depending upon the issues resolved in the settlement, the judge may have questions or require information, such that usually one party, and sometimes both parties, appear in court for a 10-minute presentation to the Judge. If the case is not settled, then there may be several court appearances at which the parties must be present to resolve either the interim issues or to testify at the final hearing.

If attempts to serve my spouse do not work, what is my next step?

If you cannot locate your spouse to serve him or her with the divorce papers, then you can serve by publication. Publishing a notice in the local newspaper where the case is pending is a last effort and requires court approval.

If you serve by publication and your spouse does not participate in the case, the court cannot make a final ruling on maintenance, child support, visitation, or division of property until the spouse is personally served or appears before the court. Therefore, it is worth the effort to find the absent spouse through a private investigator or other locator services to obtain personal service.

At what point during the process can a spouse remarry or start dating?

In Illinois, there is no waiting period for remarriage after the entry of a court order dissolving the bonds of matrimony and stating that the parties are legally free to remarry. Dating during the pendency of the divorce creates potential strategic issues. You should consider the effect your dating might have on your spouse’s willingness to settle the case and how it will affect the issues that are contested in the divorce, which will in turn affect the cost of the litigation.

If custody is an issue, you can expect the people you date to be brought into the case as to the effect they, or your social schedule, have on the children. Additionally, if you expend funds on social relationships, this may be found to be a waste of marital funds and you may be required to pay back the amount spent.

What if my spouse does not want the divorce?

Your spouse cannot stop you from getting divorced, although they may prolong the process by requiring you to prove grounds for divorce under Illinois law, instead of agreeing that grounds exist. It is the judge, not your spouse, who decides to grant you a divorce, based on the evidence. Even if your spouse ignores the divorce case completely you can still obtain a dissolution of the marriage.

Do the other issues – child support, child custody, alimony, and property – have to be decided before the divorce is final?

Typically, the court will decide all issues in a case in a single final judgment. However, in certain circumstances, the court may choose to “reserve” an issue or, if the circumstances warrant, the court may find that legally dissolving the marriage is a priority and issue an order formally dissolving the marriage.

Such an order is not the same as the court finding that grounds for divorce exist, which may be resolved first, with the remaining issues heard by the court at a later date. However, the entire divorce case is not “final” until the final judgment is entered resolving all issues, even if the marriage has been legally dissolved first.

After I file for divorce, do I have to continue to live in Illinois?

No. If you were a continuous resident of Illinois for 90 days prior to filing, you have satisfied Illinois’ jurisdictional requirement, and you are free to move out of state without affecting your case, if there are no children involved.

Once a divorce petition is filed, court approval is required to remove the children from Illinois. If neither party continues to live in Illinois, the petition may be subject to dismissal or transfer if another state already has jurisdiction or if Illinois does not have jurisdiction over both parties.

What if I am in the military and out of state?

You may file for divorce in Illinois if you or your spouse resides in Illinois or you or your spouse is stationed in Illinois.

What forms do I need to file for a divorce in Illinois?

You will need to file a Petition for Dissolution of Marriage and a summons to serve your spouse. The petition is your formal written request to the court for a divorce. If there are immediate issues that require court intervention, a Motion for Temporary Relief may also be required.

How and where is a divorce complaint filed?

The divorce complaint must be filed in the county where you or your spouse lives. The petition is filed by taking a copy of the petition and summons, as well as the applicable filing fee, to the Circuit Clerk’s office.

How do I serve the divorce complaint on my spouse?

The sheriff or a private process server will typically serve the divorce petition on your spouse. When you file your divorce petition, you will also need to have the clerk issue the summons. If your spouse lives in the county where you filed the petition, all you need to do is give the issued summons to the clerk, along with a copy of the filed petition, and ask the clerk to forward them to the sheriff for service. You will also need to pay a service fee.

If your spouse does not live in the county where you filed the petition, or lives outside of Illinois, you will need to contact the sheriff for the county where your spouse lives to determine that county’s procedure for serving the summons and petition.

If you cannot find your spouse to serve him or her with the divorce papers, then you can serve by publication, upon court approval. Because service of process is critical, service by publication is a last resort and you should consult with a qualified family law attorney before pursuing this option.

Once you have served your spouse, you will need to wait 30 days to see if he or she responds to the petition. If the opposing party does not file a response to the petition within 30 days of being properly served, then a motion for a default judgment can be filed seeking the relief set out in the petition.

How is a divorce granted? Will I have to go to court?

If your spouse is contesting one or more issues in the divorce, the parties will most likely go through discovery, a procedure where each side has the chance to request documents and information from the other side, and take depositions of individuals connected to the case.

The parties will also have the opportunity to engage in mediation or settlement discussions to try to settle some of the issues outside of court. If settlement cannot be reached, the matter will be set for trial. A final divorce judgment will be entered at the conclusion of the trial.

Even if the divorce is uncontested or a settlement is reached, usually one or both parties must be present in court to obtain the final judgment.

What typically happens if I go to court to obtain my divorce myself?

After you have filed the petition and served your spouse, you will need to wait 30 days to see if he/she responds to your petition. If your spouse fails to file a response after 30 days have passed, you can request a hearing date.

Before the hearing, you will need to prepare a Judgment of Dissolution of Marriage form. The judgment is the document the judge signs granting your divorce. At the hearing, you will need to testify about all of the facts alleged in your petition, as well as what you want the court to do.

After the judge signs the Judgment of Dissolution, you will need to file the judgment with the clerk and send a file-stamped copy to your spouse.

Illinois law provides a “simplified divorce” procedure in cases where there are no children and limited assets to be divided. The Circuit Clerk’s office can provide you with information on the simplified divorce procedure in person or, in many counties, on the clerk’s website.

How do I prove fault for divorce?

Illinois does not allocate fault, but does require grounds for the divorce. Parties rarely litigate the grounds for divorce.

Mental cruelty is the most commonly pleaded fault ground for divorce, meaning that the other spouse has acted in a manner to cause distress without provocation. If the grounds for divorce are contested, then obtaining a divorce on the ground of mental cruelty is usually not difficult to prove.

At any time can a parent change a minor child’s last name without the other parent’s permission?

While the permission of both parents is not required for a name change, the parent seeking the name change would have to file a petition with the court for the name change, which the other parent can challenge. In order to get the name changed, the court has to find that the change is necessary to serve the best interest of the child.

To determine this, the court will consider a number of factors, including the purpose of the name change; the wishes of the child’s parents; the wishes of the child; the relationship of the child with his or her parents, step-parents, siblings and step-siblings; and the child’s adjustment to his or her home, school, and community.

Can a couple become legally married by living together as man and wife under the state’s laws (common law marriage)?

No. Becoming married in Illinois requires a marriage license and solemnization as specified by Illinois Law.