Divorce
Divorce in Illinois is governed by the Illinois Marriage and Dissolution of Marriage Act (IMDMA). Under the IMDMA, the divorce case is commenced by filing a Petition for Dissolution of Marriage. The petition serves several important functions. First, the Petition apprises the other spouse that he or she is seeking a divorce. Second, the petition alleges the basis for the divorce and requests that the court grant a divorce. Third, the petition requests various forms of relief, including determination of child custody, visitation and support, division of property and debts, and maintenance (also known as “alimony”). If the parties can agree on these matters, an agreed order can be submitted to the court for approval. If the parties cannot agree on these matters, the court will make these determinations.
Grounds for Divorce
In order to obtain a divorce in Illinois, the petitioner must prove legal grounds. Illinois recognizes numerous grounds for divorce. These grounds fall within two categories: “fault” grounds and “no fault” grounds.
Fault (750 ILCS 5/401(a)(1))
- Extreme and Repeated Acts of Mental Cruelty
- Extreme and Repeated Acts of Physical Cruelty
- Habitual Drunkenness
- Excessive Use of Addictive Drugs
- Adultery
- Conviction of a Felony
- Impotence
- Bigamy
- Desertion
- Infected Spouse with a Sexually Transmitted Disease
These grounds must be proved by a preponderance of evidence. The court will consider any legally relevant evidence in determining whether there is a legally sufficient basis for the divorce.
No Fault (750 ILCS 5/401(a)(2))
- Irreconcilable Differences
Irreconcilable differences is the most common grounds for divorce. A petitioner can establish “irreconcilable differences” by showing:
(1) Irreconcilable differences have caused an irretrievable breakdown of the marriage,
(2) That past efforts at reconciliation have failed,
(3) Further efforts at reconciliation would be impracticible and not in the best interests of the family
(4) The parties have lived “separate and apart” for a period of two years*
*The two-year requirement can be shortened if the parties sign a waiver indicating that they have lived “separate and apart” for a period of six months. Typically, the parties will stipulate to irreconcilable differences and waive the two-year requirement.
Child Custody (735 ILCS 5/602 and 735 ILCS 5/602.1)
The parties may agree to a particular custody arrangement. Any such agreement must submitted to the court for approval. If, however, the parties are unable to reach an agreement as to custody, the court will make the determination. In such a case, the court will determine custody in accordance with the “best interest of the child.”
In making its determination, the court will consider the following factors:
- the wishes of the parents
- the wishes of the child
- the interaction and interrelationship of the child with his parents, his siblings and any other person who may significantly affect the child’s best interests
- the child’s adjustment to home, school, and the community
- mental and physical health of the individuals involved
- any physical violence or threat of physical violence by a potential custodian
- the occurrence of any abuse, whether directed against the child or another person
- the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other spouse
- evidence that a parent is a sex offender
- the court will not consider conduct of a present or proposed custodian that does not affect his relationship to the child.
The Court may enter an order for joint custody if the court determines that it is in the best interest of the child, taking into account the following factors:
- the ability of the parents to cooperate in matters that directly affect the joint parenting of the child.
- the residential circumstances of each parent
- all other factors that may be relevant to the best interest of the child.
Child Support (750 ILCS 5/505(a)(1))
The court may order a party owing a duty of support to pay an amount that is reasonable and necessary for the child’s support. In Illinois, the court uses child support guidelines established by statute to determine the amount of the child support obligation. Under these guidelines, the non-residential parent may be ordered to pay an amount of child support as follows:
1 child: 20% of net income
2 children: 28% of net income
3 children: 32% of net income
4 children: 40% of net income
5 children: 45% of net income
6 or more children: 50% of net income
The law allows a court to depart from these guidelines under certain circumstances. In such a case, however, the judge would need to make a finding that application of the guidelines would be inappropriate. In making such a finding, the court would consider the best interest of the child, along with factors that include, but are not limited to: (1) the financial resources and needs of the child (2) the financial resources and needs of the custodial parent, and (3) the standard of living that the child would have enjoyed if the marriage had not ended, (4) the physical and emotional condition of the child, and his educational needs, (5) the financial resources and needs of the non-custodial parent.
Maintenance of Spouse (750 ILCS 5/504)
In Illinois, a court may award temporary or permanent maintenance in amounts and for periods of time as the court deems just, without regard to marital misconduct, for a fixed or indefinite period of time, after consideration of all relevant factors.
In determining maintenance, the court considers the following factors:
- the needs of the parties
- the present and future earning capacity of the parties
- whether a parties present or future income capacity has been impaired as a result of that party devoting time to domestic duties, or having foregone or delayed education, training, employment, or career opportunities due to the marriage
- whether a party needs time to acquire education, training, and employment
- whether the party is able to support himself through appropriate employment
- whether, as a custodian, it is appropriate that the custodian not seek employment
- the standard of living during the marriage
- the duration of the marriage
- the age and the physical and emotional needs of the parties
- tax consequences
- contributions to the education, training, or career of the other spouse
- any agreement of the parties
- any other factor the court deems just and equitable.
Division of Property
If the parties are unable to agree on how to divide the marital property, the court will decide. Property acquired during the course of the marriage is presumed to be marital property, thus subject to “equitable” division by the court. The following types of property, however, are not considered to be marital property: (1) property acquired by legacy, gift, 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 after Judgment of Legal Separation, (4) property excluded by valid agreement of the parties, and (5) property acquired before the marriage.
In order to decide how to equitably distribute the marital property, the court considers numerous factors, including but not limited to:
- the duration of the marriage
- contribution of each spouse to the acquisition, preservation, increase or decrease in the value of property, including the contribution of a spouse as a homemaker.
- the dissipation of marital or non-marital property
- the value of the property assigned to each spouse
- any obligations and rights arising from a prior marriage
- custodial provisions for any children
- whether the apportionment is in lieu of or in addition to maintenance
- opportunity for future acquisition of capital assets and income
- the tax consequences of the property division
- the age, health, station, occupation, and amount and source of income, vocational skills, employability, estate, liabilities, and needs of the parties.
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