DIVORCE LAW FORUM

      

       

 

 

 

 

 

 

 

 

 

 

 

 

 

ILLINOIS DIVORCE LAW

RESIDENCY REQUIREMENTS AND WHERE TO FILE:

In Illinois, a spouse must have lived in the State or be stationed in the State while a member of the armed services, and the residence or military presence, had been maintained for 90 days preceding the filing of the action or the making of the finding. The county where the plaintiff or defendant resides shall have jurisdiction over the matter.

[See Illinois Compiled Statutes 750 - Chapter 5 - Sections: 104 and 401]
  

GROUNDS FOR DIVORCE:

No Fault: If the spouses have lived separate and apart for a period in of at least 2 years and irreconcilable differences have led to the irretrievable breakdown of the marriage, and a court determines that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family, a couple can obtain a dissolution without fault to either party.

If the spouses taken up separate residences and lived  apart for at least 6 months preceding the entry of the judgment dissolving the marriage, as evidenced by testimony or affidavits of the spouses, the requirement of living separate and apart for a continuous period in excess of 2 years may be waived upon written stipulation of both spouses.

Fault Grounds: The following grounds for dissolution exist if, without cause or provocation by the petitioner:

1)      The respondent was at the time of such marriage, and continues to be naturally impotent naturally impotent.

2)      The respondent had a wife or husband living at the time of the marriage.

3)      The respondent had committed adultery subsequent to the marriage.

4)      The respondent has willfully deserted or absented himself or herself from the petitioner for the space of one year, including any period during which litigation may have pended between the spouses for dissolution of marriage or legal separation.

5)      The respondent has been guilty of habitual drunkenness for the space of 2 years.

6)      The respondent has been guilty of gross and confirmed habits caused by the excessive use of addictive drugs for the space of 2 years, or has attempted the life of the other by poison or other means showing malice, or has been guilty of extreme and repeated physical or mental cruelty, or has been convicted of a felony or other infamous crime.

7)      The respondent has infected the other with a sexually transmitted disease.

[See Illinois Compiled Statutes 750 - Chapter 5 - Section: 401]

PROPERTY DISTRIBUTION:

Illinois employs the theory of equitable distribution with respect to property distribution.  This means that marital property shall be divided equitably, not always monetarily equally. When distributing any property acquired by either spouse during the marriage and before a judgment of dissolution of marriage, any such property is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, or community property. Any such marital property is to be divided equally, without regard to marital misconduct, considering the following factors:

1)      The contribution of each party to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property, including the contribution of a spouse as a homemaker or to the family unit.

2)      The dissipation by each party of the marital or non-marital property.

3)      The value of the property assigned to each spouse.

4)      The duration of the marriage.

5)      The relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children.

6)      Any obligations and rights arising from a prior marriage of either party.

7)      Any post-nuptial agreement of the parties.

8)      The age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties.

9)      The custodial provisions for any children.

10)  Whether the apportionment is in lieu of or in addition to maintenance.

11)  The reasonable opportunity of each spouse for future acquisition of capital assets and income.

12)  The tax consequences of the property division upon the respective economic circumstances of the parties.

 

Non-marital property:

If property is considered non-marital, it shall be awarded to the spouse in who controls the property is in. Factors included in determining non-marital include the following:

1)      Property acquired by gift, legacy or descent.

2)      Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent.

3)      Property acquired by a spouse after a judgment of legal separation.

4)      Property excluded by valid agreement of the parties.

5)      Any judgment or property obtained by judgment awarded to a spouse from the other spouse.

6)      Property acquired before the marriage.

  

LEGAL SEPARATION:

If the spouses are living separate and apart from each other, without fault, they can be awarded reasonable support and maintenance from the other spouse while they so live apart. Any such action shall be brought in the circuit court of the county in which the respondent resides or in which the parties last resided together. In the event the respondent cannot be found within the State, the action may be brought in the circuit court of the county in which the petitioner resides. Any action brought for legal separation shall be the same as in actions for dissolution of marriage. A proceeding for legal separation shall not bar either party from bringing an action for dissolution of marriage, and if the petitioner has met the requirements of Section 401, a judgment for dissolution shall be granted.

[See Illinois Compiled Statutes 750 - Chapter 5 - Section: 402]

MEDIATION OR COUNSELING REQUIREMENTS:

If the court finds that reconciliation is a possibility, the court, at the request of either party, or on its own motion, may order a conciliation conference. The court may order a conciliation conference and counseling to take place at the established court conciliation service or at any similar service or facility where no court conciliation service has been established.

In an action for dissolution of marriage where minor children are involved, or in a post-judgment proceeding where minor children are involved, the court may on its own motion order the parties, without the children, to attend an educational program concerning the effects of dissolution of marriage on the children, if the court finds that it would be in the best interests of the minor children.

[See Illinois Compiled Statutes 750 - Chapter 5 - Section: 404 and 401.1]

ALIMONY/SPOUSAL SUPPORT:

A court may grant either temporary or permanent maintenance for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct, in gross or for fixed or indefinite periods of time. The maintenance may be paid from the income or property of the other spouse after consideration of all relevant factors, including the following:

1)      The income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance.

2)      The needs of each party.

3)      The present and future earning capacity of each party.

4)      Any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage.

5)      The time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment or is the custodian of a child making it appropriate that the custodian not seek employment.

6)      The standard of living established during the marriage.

7)      The duration of the marriage.

8)      The age and the physical and emotional condition of both parties.

9)     The tax consequences of the property division upon the respective economic circumstances of the parties.

10)  Contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse.

11)  Any valid agreement of the parties.

12)  Any other factor that the court expressly finds to be just and equitable.

[See Illinois Compiled Statutes 750 - Chapter 5 - Section: 504]

SPOUSE'S NAME:

Upon request by a spouse whose marriage is dissolved or declared invalid, the court shall order her maiden name or a former name restored upon request of the party whose name is to be changed.

[See Illinois Compiled Statutes 750 - Chapter 5 - Section: 413]

CHILD CUSTODY:

The court shall determine custody in accordance with the best interest of the child. The court shall consider the following factors:

1)      The wishes of the child's parent or parents as to his custody.

2)      The wishes of the child as to his custodian.

3)      The interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest.

4)      The child's adjustment to his home, school and community.

5)      The mental and physical health of all individuals involved.

6)      The physical violence or threat of physical violence by the child's potential custodian, whether directed against the child or directed against another person.

7)      The occurrence of ongoing or repeated abuse, whether directed against the child or directed against another person.

8)      The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.

9)      Whether one of the parents is a sex offender.

10)  The court may enter an order of joint custody if it determines that joint custody would be in the best interests of the child, taking into account the following:

11)  The ability of the parents to cooperate effectively and consistently in matters that directly affect the joint parenting of the child. "Ability of the parents to cooperate" means the parents' capacity to substantially comply with a Joint Parenting Order. The court shall not consider the inability of the parents to cooperate effectively and consistently in matters that do not directly affect the joint parenting of the child.

12)  The residential circumstances of each parent.

13)  All other factors which may be relevant to the best interest of the child. Nothing within this section shall imply or presume that joint custody shall necessarily mean equal parenting time. The physical residence of the child in joint custodial situations shall be determined by: (1) express agreement of the parties; or (2) order of the court under the standards of this Section.

[See Illinois Compiled Statutes 750 - Chapter 5 - Section: 602]
 

CHILD SUPPORT:

In Illinois, a court may order either or both parents of the marriage to pay an amount reasonable and necessary for his or her support, without regard to marital misconduct. Illinois uses income percentage model to calculate child support according to the following guidelines:

1)      One child equals 20% of supporting party’s net income.

2)      Two children equals 28% of the supporting party’s net income.

3)      Three children equals 32% of the supporting party’s net income.

4)      Four children equals 40% of the supporting party’s net income.

5)      Five children equals 45% of the supporting party’s net income.

6)      Six or more children equals 50% of the supporting party’s net income.

The above guidelines shall be applied in each case unless the court makes a finding that application of the guidelines would be inappropriate, after considering the best interests of the child in light of evidence including but not limited to one or more of the following relevant factors:

1)      The financial resources and needs of the child.

2)      The financial resources and needs of the custodial parent.

3)      The standard of living the child would have enjoyed had the marriage not been dissolved.

4)      The physical and emotional condition of the child, and his educational needs.

5)      The financial resources and needs of the non-custodial parent.

[See Illinois Compiled Statutes 750 - Chapter 5 - Section: 505]

 

 

 

Disclaimer

This site is not meant to provide legal representation or to be relied on in place of an attorney. We recommend that anyone serious about going forward with a Divorce or Child Custody claim seek the advice and counsel of a qualified attorney in their respective state.

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