Grounds for Divorce in Illinois
In Illinois, a divorce is either a fault divorce or a no-fault divorce. According to the Illinois Marriage and Dissolution of Marriage Act, grounds for divorce are irrelevant for purposes of determining how property owned by the parties is divided between them in the divorce decree.
So, why do we care about the grounds a person uses to petition the Court for the divorce? In many cases, it is a matter of pride or one party feels the overwhelming need to show the world that their spouse was unfaithful.
In a no-fault divorce, neither party is blamed for the failure of the marriage. Rather, the parties cite “irreconcilable differences” as the cause for the breakdown of the marriage. Either party may initiate a no-fault divorce.
However, it is important to remember that there is a physical separation requirement that must be satisfied in order to obtain a divorce on no-fault grounds. Illinois law requires that the parties live separate and apart for a period of at least 6 months if both parties agree to the divorce. If one party objects to the divorce, the parties must be separated for a period of two years.
There are two important things to remember about living separate and apart. First, you do not have to be living separate and apart physically. It is enough that you live like roommates rather than like husband and wife, even though you may share the same address and live under the same roof. Many people have been living in this fashion for many months, and even years, before ever contacting a lawyer or filing for divorce.
Secondly, it is important to remember that the separation period must be satisfied prior to the entry of the Judgment for Divorce or Divorce Decree. This means that you can file for divorce, and be working out all the details, while fulfilling the separation period requirement.
A divorce based upon fault grounds requires one party to declare a specific reason why he or she seeks a divorce. Fault grounds according to the Illinois Marriage and Dissolution of Marriage Act are:
- Desertion for a period of at least one year
- A felony conviction
- Alcohol or drug addiction for a period of at least two years
- Extreme and repeated physical or mental cruelty
- Attempting to take the other spouse’s life
- Infecting the other spouse with a sexually transmitted disease
Aside from the brief satisfaction of showing that your spouse was a bad partner in life, the only advantage to asking for a divorce on fault grounds is in doing so it allows the Judgment for Dissolution of Marriage to be entered without a required separation period. This becomes very important in situations where you do not know the whereabouts of your spouse and/or you believe that the likelihood he/she will participate in the divorce is slim so you can avoid waiting for two years to obtain your divorce.
The most commonly alleged fault grounds is “extreme and repeated mental cruelty”. Why? This fault grounds remains the easiest and the least expensive to prove in Court. Remember, there is no financial advantage to you in a divorce by proving that your spouse committed adultery. And, unless you have had the unfortunate experience of witnessing the act personally, you will need someone who has witnessed the act to testify in Court against your spouse in order to be successful. So, why would you spend thousands of dollars on a private investigator to catch your spouse in the act of fornicating with another if it does not give you the financial advantage in Court? You wouldn’t.