This article will give you an overview of the most up-to-date Illinois divorce laws. There have been no significant changes to Illinois divorce law in 2024 but we will cover divorce laws that took effect on January 1st, 2022. The new Illinois laws allow for a party during a divorce proceeding to relocate if it is in the child's best interest. New Illinois law allows for a moving party to seek from the opposing party, a retainer payment so that the moving party can retain an attorney in divorce proceedings. New Illinois law allows for a Court Appointed Special Advocate to act in a minor’s best interests and advocate for a minor where it is alleged that the minor has suffered from abuse or neglect.
What is Divorce in Illinois?
In Illinois divorce is where two married people decide that they no longer wish to continue their marital relationship, one spouse files a Petition for Dissolution of Marriage. Whether you are contemplating a divorce with your spouse or have been served with divorce papers it is a good idea to take action and get an attorney to protect you and your rights.
What Grounds do I need to get a divorce in Illinois?
In Illinois you need grounds to get divorced, you can view grounds as a term that gives you a legal right to get divorced. In Illinois spouses will cite irreconcilable differences as grounds to get divorced. What irreconcilable differences means is that there has been a breakdown of the marital relationship between the spouses and any attempts to fix the marriage have failed and will continue to fail in the future between the spouses and it is not in the spouses or the family as a whole’s best interest to continue the marriage.
Do I have to live apart from my Spouse for 6 months in order to get divorced in Illinois?
Illinois law under the Illinois Marriage and Dissolution of Marriage Act provides that you and your spouse need to be living separate and apart for 6 months in order to get divorced in the state of Illinois.
You do not necessarily have to live physically separate and apart from your spouse for 6 months in order to get a divorce in Illinois.
What the meaning of separate and apart depends on, is if the spouses have been living separate lives from each other. This could mean that the spouses live under the same roof but live apart from each other such as the spouses having separate sleeping quarters and that the spouses are no longer physically intimate, basically the spouses have been living apart even if they have been living under the same roof for at least 6 months.
What If I want to fight my Divorce in Illinois because I still love my Spouse?
In Illinois you have every right to fight the divorce proceedings, some spouses want to try and save the marriage even though there are issues present, to do so, you will have to fight the grounds cited in the divorce petition Irreconcilable Differences.
In this situation you are in an uphill battle, but it is not impossible, you will need to attack that there are irreconcilable differences which are leading to a breakdown of the marriage between the parties. You should not fight a divorce on your own, you should obtain an attorney who can advocate for you, call us at O’Flaherty Law for a consultation as our highly experienced family law attorneys can help navigate you through the difficult Illinois divorce process.
Let’s begin by examining the key aspects of Illinois divorce laws. A key feature of these laws is the no-fault provision, which means that either spouse can file for divorce without having to prove any fault-based grounds such as adultery or cruelty. So, if you’ve found yourself in a marriage that seems beyond repair, Illinois law offers a way out.
However, it’s not as simple as just wanting a divorce. You must meet certain residency requirements to be eligible to file for divorce in Illinois. Moreover, the division of marital assets, which includes everything from houses to bank accounts, operates under principles of equitable distribution. And yes, one spouse can petition the court to require the other party to provide financial support for legal representation.
No Fault Divorce State
Having touched on the no-fault provision, it’s worth explaining its actual meaning. In essence, Illinois being a no-fault divorce state implies that the only basis for divorce is irreconcilable differences, without the requirement to demonstrate fault or misconduct by either spouse. This can be a relief for many couples, as it spares them the conflict and humiliation of airing their marital grievances in court.
However, there are still some strings attached. A couple is required to have lived separately for a minimum of two years to file for a no-fault divorce in Illinois. But don’t despair just yet. If both parties agree, this period can be shortened to six months. This goes to show that even in the midst of a divorce, cooperation can go a long way.
Residency Requirements
Before proceeding with a divorce filing, you need to fulfill a significant prerequisite: residency. In Illinois, at least one spouse must have established residency in the state for a minimum of 90 days prior to initiating the divorce proceedings. So, if you’ve recently moved to Illinois and are contemplating a divorce, you’ll need to wait out this period first.
But what if you’re on active military duty or have been living apart from your spouse? Good news: there are exceptions to the 90-day rule. For instance, the residency requirement can be waived if the parties have been living apart for at least six months prior to filing the petition. For military personnel, one spouse must be stationed or residing in Illinois for a minimum of 90 days. So, even in complicated circumstances, Illinois law provides a way forward.
Initiating the Divorce Process
After grasping the fundamentals of Illinois divorce laws and satisfying the residency requirements, you can embark on the initial phase: launching the divorce process. The journey begins with filing a petition for dissolution of marriage. But what happens if the other spouse doesn’t respond? In such a scenario, the court will proceed without their participation, leading to the establishment of an uncontested divorce.
For those seeking a speedy resolution, Illinois offers a joint simplified divorce. This legal procedure is designed to expedite the divorce process for eligible couples by meeting certain criteria and fulfilling specific legal requirements. So, even in the midst of a difficult situation, there’s a silver lining: the possibility of a swift and relatively uncomplicated divorce process.
Filing the Petition
To initiate a divorce petition in Illinois, you must:
- File the petition in your residential county.
- Complete the required forms.
- Submit the forms to the specified courthouse, such as the Daley Center.
- Serve the other party with the summons.
But where do you get these forms? They’re available on the Illinois Office of the Courts website, where you can download and complete Divorce, Child Support, and Maintenance forms. Additionally, the petition should include essential information and documents for the prove up. Assistance can also be sought from Illinois Legal Aid Online.
What’s more, a divorce petition in Illinois can indeed be filed online through Illinois courts.
Serving Your Spouse
Once you’ve filed the petition, the subsequent action involves serving your spouse. Once served with a divorce petition in Illinois, the spouse has a period of 30 days to submit a response. Failing to respond means they lose the opportunity to contest any terms of the divorce, such as:
- child custody
- support
- alimony
- division of assets and debts
However, a spouse can request an extension to respond to a divorce petition in certain situations, such as a health emergency or active military duty.
Serving a divorce petition can be done through hand-delivery, certified mail with return receipt, or utilizing the services of a sheriff or special process server. However, improper service can lead to significant repercussions, as it is essential for both parties to receive proper notice of the divorce proceedings for the process to commence and conclude.
Division of Marital Assets and Debts
As we further explore the intricacies of Illinois divorce laws, it’s vital to comprehend the division of marital assets and debts. The court divides these based on equitable distribution principles, meaning it aims to divide them in a manner it deems fair, even if not necessarily in equal shares.
But how does the court decide what’s fair? It considers various factors such as:
- The duration of the marriage
- Economic circumstances of each party
- Non-financial contributions
- Access to separate assets
- Child custody responsibilities
- Post-divorce economic circumstance
As for debts accumulated during the marriage, they are typically viewed as the joint responsibility of both parties and are distributed equitably. Therefore, a pivotal part of the divorce process is disclosing assets. This helps facilitate an equitable distribution of assets and aids in assessing the necessity for spousal maintenance and child support. Once the divorce decree is issued, the agreed-upon terms are legally binding.
Identifying Marital Property
Before dividing marital property, it must first be identified. Marital property encompasses assets and debts obtained throughout the marriage, while non-marital property pertains to assets owned by one spouse individually and is not eligible for division during divorce proceedings. This includes pension plans, individual retirement accounts, and stocks.
Jointly owned property, such as a house or a car, is also considered marital property and is subject to division during a divorce. However, non-marital property, such as inheritance or gifts, remains with the individual owner and is not subject to division.
Equitable Distribution Factors
The court takes into account various factors when dividing marital property, including:
- The duration of the marriage
- The contributions of each spouse
- Their respective financial situations
- Non-financial contributions
- The future financial circumstances of each spouse
It’s not just about who earned more or who spent more. By considering these factors, the court aims to achieve a fair and equitable division of marital property.
The length of the marriage also plays a significant role in property division, with longer marriages more likely to result in property being classified as a marital asset eligible for division. The financial circumstances of the spouses, such as their earning capacities, are also considered to achieve a fair distribution of marital assets.
Spousal Support and Maintenance
Another significant facet of Illinois divorce laws is spousal support, alternatively known as alimony. It’s a court-ordered payment from one spouse to the other following a divorce, aimed at maintaining the current standard of living for both spouses to the greatest extent possible. The duration of the alimony payments is determined based on the duration of the marriage, and in the case of marriages lasting 20 years or more, it could lead to maintenance for a comparable duration or even permanent maintenance.
The amount of spousal maintenance is calculated using a specific formula that involves deducting 25% of the recipient’s income from 33% of the payer’s income. There is also an income threshold, wherein the recipient’s earnings from maintenance payments cannot exceed 40% of the couple’s combined income. However, marital misconduct does not play a role in determining alimony payments.
Calculating Alimony Payments
In Illinois, the calculation of alimony payments follows a specific formula: Alimony Payment = (33% of the payer’s income) – (25% of the recipient’s income). However, for families with a combined annual gross income of under $500,000, a distinct formula is utilized.
There are also specific caps or limits on alimony payments in Illinois. According to the law, the amount of maintenance added to the gross income of the payee cannot result in the payee receiving more than 40 percent of the combined gross income of the parties. This calculation can be impacted by:
- Changes in employment status
- Cohabitation
- Remarriage of the recipient
- Death of either party
Modifications to Spousal Support
Life’s constant changes can significantly influence spousal support. In Illinois, spousal support can be either increased or decreased in response to a substantial change of circumstances, such as:
- a significant financial change affecting either party
- a change in employment status
- a change in the needs of the recipient spouse
- a change in the ability of the paying spouse to meet their support obligations
To modify spousal support, it is necessary to submit a motion to modify or terminate spousal maintenance to the court that issued the original order.
It’s important to note that a substantial change of circumstances doesn’t just mean a change in income. It can also include changes in employment status, health, or living arrangements. The court plays a crucial role in assessing these changes and has the jurisdiction to adjust spousal support accordingly.
Child Custody and Support in Illinois
The topic of child custody and support often carries significant emotional weight in any divorce. In Illinois, these are determined based on the best interests of the child and state guidelines. Parental obligations encompass decision-making rights and parenting time, which are determined based on the best interests of the child.
Child support, on the other hand, follows the Flat Percentage of Income Model. This is established by statutory guidelines and takes into account a percentage of the non-custodial parent’s net income. However, adjustments can be made considering various factors such as the financial resources and obligations of the parents, as well as the child’s needs.
Determining Parental Responsibilities
The process of determining parental responsibilities includes the following steps:
- Preparation
- Case initiation
- Initial case management conference
- Discovery
- Court decision based on the child’s best interest.
In the best interests of the child, the court takes into account all pertinent factors, such as the child’s physical, emotional, and educational requirements, the parents’ preferences, and the child’s relationship with each parent. It’s important to note the distinction between legal and physical custody. Legal custody pertains to the authority to make significant decisions for a child, whereas physical custody pertains to the child’s place of residence.
Child Support Guidelines
The Illinois Child Support Guidelines, in effect as of 2024, utilize the ‘income shares’ model, which allocates childcare expenses between parents according to each parent’s proportionate share of combined net income. This means that both parents are financially responsible for their child’s needs, not just the parent who has physical custody.
Child support payments are determined based on the following factors:
- The combined net incomes of both parents
- The number of children
- The number of overnights with each parent
- Each parent’s net income
- Majority parenting time
- Child’s needs
- Each parent’s expenses
These factors are used to calculate the specific support amount using the Illinois Child Support Estimator.
Parental income, including that of the other parent, plays a crucial role in child support calculations, as it involves the utilization of the income shares schedule outlined in the Illinois Marriage and Dissolution of Marriage Act (IMDMA) to determine the appropriate amount.
Protecting Non-Marital Property
Protecting non-marital property, like gifts and inheritances, is a critical consideration during a divorce. In Illinois, gifts are classified as non-marital property. To maintain the separation of non-marital property, you can use strategies such as:
- Creating a prenuptial or postnuptial agreement
- Maintaining a separate account
- Placing assets in a trust
- Keeping thorough records
Inherited property is considered separate and is not bound by marital property regulations, although it can be invalidated if commingled with marital assets. Therefore, it’s crucial to maintain comprehensive records of non-marital assets, including detailed financial documentation. This can help overcome the presumption of marital property and establish clear evidence of non-marital property.
The Impact of Domestic Violence on Divorce Proceedings
In Illinois, domestic violence can have a substantial effect on divorce proceedings. It encompasses various forms of abuse, such as physical, emotional, and stalking, as well as harassment through communication methods inflicted by one spouse upon the other. If you’re encountering domestic violence in the context of a divorce, you should vacate the shared residence, contact law enforcement, and seek a civil order of protection to establish legal boundaries between yourself and the abusive spouse.
In Illinois, domestic violence allegations do not require proof for obtaining a divorce, as it is a no-fault state. Domestic violence can have various implications on child custody determinations, such as:
- The court mandating the abuser to participate in a domestic violence abusers program
- Awarding custody to the non-abusive parent
- Requiring the abuser to provide child support
- Prohibiting unsupervised parenting time for the abuser.
Financial Planning Post-Divorce
Post-divorce financial planning is essential for a smooth transition and safeguarding your assets. This includes:
- Updating estate plans and beneficiary designations after a divorce to safeguard assets and ensure that they are distributed in alignment with your current intentions.
- Modifying your will to exclude your ex-spouse as a beneficiary and executor.
- Actively changing the beneficiary status on life insurance policies.
Following a divorce, it’s crucial to be mindful of potential financial challenges, such as:
- Avoiding rushing financial decisions
- Refusing mediation or arbitration
- Misvaluing assets
- Neglecting to obtain a comprehensive understanding of your finances
- Underestimating post-divorce expenses
- Assuming all assets can be easily divided.
Navigating Divorce with Legal Assistance
Securing legal assistance while traversing a divorce in Illinois can prove immensely advantageous. It offers the following benefits:
- Demonstrates emotional strength and determination
- Provides more control over the situation
- Helps with jurisdiction decisions
- Allows evidence to be presented first
- Preserves assets
- Avoids dramatic changes
- Provides access to experienced investigators
- Offers support and reduces stress
- Ensures that rights and interests are protected throughout the process.
A divorce lawyer in Illinois has significant responsibilities in divorce proceedings, including representing and advocating for their client’s best interests, guiding them through the legal process, explaining current laws, and helping protect their property and parental rights. They can provide assistance in navigating through the complexities of Illinois divorce laws, explaining rights and options, and guiding through the entire divorce process. A lawyer can secure a just resolution in an Illinois divorce case by utilizing discovery to reveal any attempts to conceal assets or income, as well as by overseeing precise asset valuation and contesting any inconsistencies.
Illinois Marriage and Dissolution of Marriage Act Now Allows for Interim Attorney Fees
Under this new Illinois law which goes into effect January 1st, 2022, allows for one party to obtain from the other party money to obtain an attorney, this money will be used for the other party to retain an attorney. The requesting party must have their attorney sign an affidavit which states that the attorney agrees to enter their appearance for the party requesting the attorney if the Court grants the request. The party seeking the attorney must also provide a certificate that the fees will be used solely for the purpose of retaining an attorney to represent them in the Court proceedings.
Illinois Marriage and Dissolution of Marriage Act Now Allows for a Parents Relocation during Divorce Proceedings
Under this new Illinois law which goes into effect January 1st, 2022, one parent may now seek permission from the Court to relocate their residence while a case is pending as long as the relocation of the child would be in the child’s or children’s best interest.
Illinois new Law Requires for Minor Children to Have a Court Appointed Special Advocate
Under this new Illinois Law, which goes into effect January 1st, 2022, in cases where it is alleged that a minor child or children is abused, neglected, or dependent, in Illinois counties with a population of less than three million residents a Court Appointed Special Advocate “CASA” is required to be appointed to advocate for the minor’s child or children’s best interests.
In Illinois counties where the population is three million residents or more a CASA may be appointed if the Court decides to but it is not required. A CASA may not act as a Guardian Ad Litem. A CASA owes duties to the minor child or children such as maintaining constant contact and open communication with the minor child or children.
The CASA must conduct an independent investigation to the case’s facts. The CASA must be trained and educated in the field of child abuse, child neglect, and child dependence. The CASA must attend all court proceedings and advocate always in the child or children’s bests interests. The CASA must submit their factual findings to the court on whether or not the child or children’s best interests are being met.
Summary
Navigating the complexities of divorce, especially in Illinois, can be a daunting task. However, understanding the laws can help you navigate this labyrinth with confidence. From filing the petition to serving your spouse, from dividing marital assets to calculating alimony payments, and from protecting non-marital property to dealing with domestic violence, every aspect of the process requires careful consideration and understanding. It’s our hope that this guide has provided valuable insights into Illinois divorce laws and will serve as a reliable resource throughout your journey.
Frequently Asked Questions
How many years do you have to be separated to be legally divorced in Illinois?
In Illinois, you need to live separately for six months to be legally divorced, although this requirement can be waived if both parties agree.
How long does it take to get a divorce if both parties agree in IL?
If both parties in Illinois agree on everything, an uncontested divorce could take anywhere from a few weeks to a year. It depends on the specific circumstances.
What is the timeline for a divorce in Illinois?
In Illinois, finalizing a contested divorce typically takes about six months, but the process can vary widely and may range from two months to a few years due to different types of divorce and various factors.
Do you have to wait 6 months to get a divorce in Illinois?
In Illinois, you typically need to live separately for six months before getting a divorce, but this requirement can be waived if both parties agree.
How long do you have to be married to get half of everything in Illinois?
The length of a marriage is an important factor in determining property division, but there is no set length that decides how much you get in Illinois.
While we serve clients in Illinois, if you’re in the Downers Grove area and are looking for an experienced Downers Grove family attorney to assist you, please feel free to reach out to O’Flaherty Law at:
O'Flaherty Law of Downers Grove
4949 Forest Ave Ste. 1B
Downers Grove, IL
(630) 687-6993
downersgrove.il@oflaherty-law.com
https://www.oflaherty-law.com/locations/downers-grove
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