Traditionally, many states required spouses to have a specific reason for getting divorced. In order to dissolve their marriage, spouses were required to present evidence that their significant other had committed some sort of “fault” – such as adultery, a serious criminal offense resulting in jail time, or habitual drunkenness. In some states, spouses had the option to file for divorce on the basis of fault or seek a “no-fault” divorce on the grounds that their marriage had become irretrievably broken.
Illinois followed this dual approach until 2016. However, with the enactment of significant changes to the Illinois Marriage and Dissolution of Marriage Act (IMDMA), on January 1, 2016, Illinois became a purely “no-fault” divorce state. As a result, when seeking a divorce in Illinois, your only option is to file on the basis of irreconcilable differences.
What Does it Mean to Reach “Irreconcilable Differences” in Illinois?
So, what does it mean to reach “irreconcilable differences” with your spouse? Section 401 of the IMDMA provides:
“The court shall enter a judgment of dissolution of marriage when . . . [i]rreconcilable differences have caused the irretrievable breakdown of the marriage and the 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.”
In practice, establishing irreconcilable differences for purposes of getting divorced in Illinois is a fairly straightforward process. The courts generally will not question a spouse’s decision to get divorced; and, if spouses are in disagreement over whether it is time to end their marriage, this in itself can be enough to show irreconcilability.
Wouldn’t it Be Better if I Could Prove Fault During the Divorce Process?
Many people find it confusing that states would eliminate the fault-based grounds for divorce. If your spouse has cheated on you, or if you have experienced physical or psychological abuse, why shouldn’t you be able to use this as grounds to file for divorce?
The reasoning behind Illinois’ (and other states’) decision to transition to a “no-fault” divorce law is actually fairly simple: In order to file for divorce on fault-based grounds, spouses were required to prove their justification for seeking a divorce. This meant that spouses who had been cheated upon or who were victims of domestic violence could not file for a fault-based divorce unless and until they had evidence to present to the court. As a result, spouses living in unfaithful or abusive relationships were often required to delay their divorce filings (and in cases of domestic violence, potentially put themselves in danger of further harm) until they had the proof they needed to go to court. Even then, their spouses could dispute their fault-based divorce filings; and, as a result, relying on fault-based grounds often did more harm than good.
With a no-fault divorce, these concerns are no longer relevant. If your spouse has committed a marital fault, you can certainly still use this as your personal basis for seeking a divorce. Additionally, fault can still come into play in certain aspects of your divorce – most notably with regard to the determination of child custody, where all decisions need to be made in the best interests of the children involved. But, for purposes of justifying your divorce, no more is required than your own decision that it is time for your marriage to be over.
Other Important Facts about Filing for Divorce in Illinois
What else do you need to know before you file for divorce in Illinois? There are several steps involved in getting divorced, and legal requirements vary from one state to the next. If you are contemplating a divorce in Illinois, here are five important facts for you to know:
- Illinois Has a Residency Requirement. Under Section 401 of the IMDMA, you and/or your spouse must have lived in Illinois for at least 90 days before you are eligible to file for divorce. This requirement can be satisfied through residence (i.e. living primarily or exclusively in Illinois) or through the military assignment. However, if you recently moved to Illinois, you do not have to wait 90 days before starting the divorce process. It takes time to prepare, and you can do these preparations in advance so that you are ready to file as soon as you are eligible.
- Illinois Does Not Have a Waiting Period. Unlike some other states, Illinois does not have a waiting period between the date you file for divorce and the date on which your divorce can be made final. If you and your spouse are ready to get divorced and you have resolved all of the issues involved in your divorce, it is possible that you could go to court and go home with a divorce the same day.
- Illinois Recognizes the Enforceability of Prenuptial and Post-Nuptial Agreements. Prenuptial and post-nuptial agreements are both enforceable under Illinois law (subject to certain conditions and limitations). If you and your spouse signed a prenuptial or post-nuptial agreement, it will be important to assess the impact of this agreement before taking other steps related to your divorce.
- Getting Divorced is a Process. Even under the most straightforward of circumstances, getting divorced is more involved than most people realize. From accurately identifying your separate and marital assets to calculating child support and reaching a legally enforceable agreement with regard to custody and visitation, there are several issues that most spouses will need to carefully consider.
- There are Some Important Mistakes You Need to Avoid. Finally, when you get divorced, in addition to taking a number of proactive steps, you also need to avoid some potentially costly mistakes. To learn more, you can read: 5 Mistakes People Make When Going Through a Divorce in Illinois.
Schedule a Free Initial Divorce Consultation in Gurnee and Chicago, IL
If you are considering a divorce and would like more information about what you can expect along the way, we encourage you to contact us for a free, no-obligation consultation. To speak with Gurnee and Lake County, IL divorce attorney Deanna J. Bowen in confidence, please call 847-623-4002 or request an appointment online today.