by Attorney Eric D. PuryearA divorce, also referred to as a marital dissolution, is the termination of a marriage by court order. In Illinois, there is a 90 day residency requirement, meaning that the husband or wife must have lived in Illinois for 3 months. If neither spouse has lived in Illinois for the required 90 days, then the Illinois court system cannot grant a divorce. The proper court for filing for divorce in Illinois is the circuit court for the county where either spouse lives. The Illinois divorce law section can be found at 750 ILCS 5/401 et seq.
In Illinois, the law was changed effective January 1, 2016 to eliminate the old grounds requirement for divorce, and instead require only irreconcilable differences. This simplification of the process of the divorce process is in keeping with the modern trend in divorce law across the country.
The spouse who initiates the divorce is called the Petitioner, and the other spouse is called the Respondent. The Petitioner begins the process by filing a petition for divorce and paying a filing fee to the court. Illinois, like other states, allows for “no-fault” divorces, meaning that a spouse need only claim that “Irreconcilable differences” exist in the marriage such that it should be dissolved. The Respondent is served with legal paperwork informing them of the divorce proceeding.
Early in the case, the court may address Temporary Allowances, which are temporary custody, visitation, child support, spousal support, or other similar matters. The purpose of doing so is to address time sensitive matters (such as who cares for the child) early in the case so that harm does not result during the time it takes to handle the case.
Next, each of the spouses discloses their income, assets, liabilities, and other financial data. If the spouses and their attorneys can reach an agreement as to the distribution of assets, then they can prepare an agreed order and submit it to the court for approval. When negotiation (and mediation) have failed, and the spouses remain unable to agree upon the distribution of property, a trial will be conducted so that the court can determine how to distribute property. Illinois is an equitable distribution state, which means that the court will divide all property, except inherited property or gifts received by one spouse, fairly between the spouses after considering all of the following factors:
- Length of the marriage
- Quantity and quality of marital and non-marital property
- Financial circumstances and earning ability of each spouse
- Age and health of each spouse
- Each spouse’s contributions towards acquiring property during the marriage
- The benefit derived by each spouse from the property
- Each spouse’s obligations and rights from prior marriages
- Any agreements spouses made during the marriage as to property distribution at the time of divorce
- The tax consequences of property division
Depending upon the circumstances of the parties, the court has the discretion to order support payments to either party (called “alimony“) for a limited or indefinite length of time after considering all of the following factors:
- Length of the marriage
- Income and property of each spouse and their abilities to meet their financial needs
- The standard of living during the marriage
- Time required for a spouse to find a suitable job and/or go back to school for additional education
- Age and physical and emotional condition of the spouse seeking support
- Tax consequences of ordering spousal support
- An agreement made by the parties as to alimony
In cases where children are involved, Illinois courts will generally award joint legal custody to the parents. An exception is cases in which there has been domestic abuse. Physical custody can be awarded to either parent or both parents, and a parent who is not awarded physically custody will almost certainly be granted visitation. The goal of the custody award is to serve the best interests of the child, and the court will consider the following factors in reaching that determination:
- The child’s relationship with each parent
- The child’s relationship with his or her siblings
- The child’s level of adjustment to home, school and community
- The mental and physical health of all family members involved
- Any physical violence or threats of physical violence directed at the child or seen by the child
- Any abuse in either parent’s househouse
- The willingness and ability of each parent to support the child’s relationships with the other parent
- Each parent’s wishes
- The wishes of the child
Illinois courts have the authority to order either or both parents to pay a reasonable amount towards the support of the child. To determine the amount of support, consideration is given by the court to the responsibility of both parents to support and provide for the welfare of the minor child and of a child’s need, whenever practicable, for a close relationship with both parents.
A spouse may request as a part of the decree of dissolution that the court change their name to either their maiden name or any other former name that they had before the marriage.
Finally, a party who is not happy with the outcome of the divorce ruling by the court can appeal.