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Kathryn L. Harry & Associates, P.C.

Grounds for Divorce in Illinois and Living Apart

Posted on in Divorce

living separate and apart, grounds for divorce, lawyer, attorneyDivorce in Illinois is governed by the Illinois Marriage and Dissolution of Marriage Act (IMDMA). Under the law, a ground for divorce may be either on "fault" or "no-fault."

Fault Grounds

Fault divorces hearken back to the past where getting a divorce was more difficult and a couple had to show that the other party was "guilty" of some misdeed. In Illinois, fault grounds include things like adultery, abandonment, extreme physical cruelty, mental cruelty, and several others.

Illinois residents often wonder if there are any benefits to seeking a fault divorce. After all, if one partner causes the marital breakdown—perhaps by having an affair—then shouldn't that be reflected in the divorce?

While it may be emotionally satisfying to have someone take the blame in the process, it does not usually affect the resolution of other divorce issues. For example, a court will not decide to give one party more property than the other simply because the other spouse acted inappropriately. In other words, as a legal matter, filing divorce on fault grounds often serves very little purpose.

No-Fault Divorce

Today, many of divorces in Illinois are based on the no-fault grounds legally referred to as irreconcilable differences. In these cases, the couple does not have to provide an explicit reason for the divorce, other than that it is "irretrievably broken," and that future attempts at reconciliation are not in the best interest of the family. In order to obtain a no-fault divorce, the couple must live "separate and apart" for at least six months if both agree to dissolve the marriage. If only one spouse seeks a no-fault dissolution, however, the couple must be separated for at least two full years before Judgment for Dissolution of Marriage may be entered by the Court.

Living "Separate and Apart"

Most Illinois residents are eager for the divorce to be finalized as soon as possible, which makes the separate and apart timing requirement one of the most disconcerting aspects of the process. On its face, the law appears to mean that two spouses must live in distinctly different locations throughout the entire 6 months to 2 years time, without a break. But as with most legal matters, it is not always that simple. In fact, there are many well-known Illinois family law cases where the exact definition of "separate and apart" is analyzed. For example, in what was at the time a somewhat novel ruling, an Illinois court found that even though two spouses were living in the same house for two years (even having dinner together), they were still deemed to be living "separate and apart" for purposes of obtaining a divorce in Illinois.

To help provide more clarity, the IMDMA actually provides more specific guidance on what living arrangements count toward the living separate and apart requirement. The statute notes that even if the spouses cohabitate, their situation may still be defined as living separate and apart and count toward the timing requirement if the cohabitation is simply a good-faith attempt to reconcile. They may even participate in marriage counseling or therapy sessions during the period of "living separate and apart."

Legal Help in Your Divorce

Divorce laws are very complicated, and this post only delves into a small portion of them. The law is applied uniquely to each set of different circumstances, and it is important to understand how the laws operate and to be on top of situations in which they may change. If you are considering or are already involved in a divorce and are trying to determine how the law applies to your case, contact Kathryn L. Harry & Associates, P.C. at 630-472-9700 for a free consultation. We have offices in Oak Brook, Naperville, and represent men and women throughout Northern Illinois. Our family law expertise will help guide you in considering your options and resolving your divorce.

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