The old concept that only an innocent spouse may file for divorce has been abandoned in Illinois; either party (even the "guilty" spouse) may file. Illinois is one of a few states that has maintained the traditional fault-based grounds for divorce, but has added a "no-fault" ground, known as irreconcilable differences.Grounds for divorce are:
Although the petitioner must allege and testify that the respondent spouse has committed a ground "without fault or provocation on the part of the petitioner," as a practical matter, if the grounds are contested, all a spouse need do is wait for two years and file on the ground of irreconcilable differences.
- natural impotence at the time of the marriage and continuing thereafter
- bigamy (also a ground for annulment)
- adultery
- wilfully desertion or absence from the petitioner for the space of one year
- habitual drunkenness for the space of 2 years
- gross and confirmed habits caused by the excessive use of addictive drugs for the space of 2 years
- threatening the life of the other by poison or other means showing malice
- extreme and repeated physical or mental cruelty
- conviction of a felony or other infamous crime
- infecting the other spouse with a communicable venereal disease.
- irreconcilable differences
The "no fault" ground requires that:
- the spouses have lived separate and apart for a continuous period in excess of 2 years [Illinois Courts have found that "separate and apart" does not necessarily mean separate housing; if the parties reside in the same household, they must live as if they were "separate and apart."]
- irreconcilable differences have caused the irretrievable breakdown of the marriage
- efforts at reconciliation have failed and further 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 prior to entry of the divorce judgment, the 2-year living apart requirement may be waived if both parties stipulate in writing. After separation, any period during which the parties live together while attempting to reconcile and participating in marriage counseling, or under a written reconciliation agreement, will count towards the required separation period if the reconciliation fails.
The issues in every dissolution case are child custody (including visitation), property, child support, and maintenance (otherwise known as alimony or spousal support). All of these issues must be adjudicated before a judgment of dissolution may be entered. Under certain circumstances, the court may enter a judgment for dissolution that reserves any of these issues for later disposition.
If the death occurs before entry of judgment, the case abates (ends). If the death occurs subsequent to entry of a judgment for dissolution, but before judgment on reserved issues, the proceedings do not abate and the reserved issues will be adjudicated.
A spouse living separate and apart without fault may petition a court for a judgment of legal separation and reasonable support and maintenance. A judgment for legal separation is not a bar to either party later instituting an action for dissolution of marriage.
The material presented here is for informational use only. It is intended to provide an in-depth review of Illinois marriage, divorce and custody law for use by non-lawyers in understanding the issues involved. Under no circumstances should this be considered legal advice, nor does it substitute for legal consultation. A lawyer should be consulted when legal advice is indicated.