When going through a divorce in Illinois, nearly all aspects of the process require legal knowledge. Getting divorced is a legal process, and divorcing spouses need to make informed decisions in order to protect their legal rights.
The primary law governing the divorce process in Illinois is the state’s Marriage and Dissolution of Marriage Act. This law, which appears in Section 5 of Chapter 750 of the Illinois Compiled Statutes, addresses topics ranging from eligibility to file for divorce to divorcing spouses’ rights regarding property, alimony, and attorneys’ fees. But, several other Sections of Chapter 750 are relevant as well. For example, Sections 24, 25, and 27 address child support, while Sections 35 and 36 address child custody.
Reading these laws from beginning to end can be painful; and, even if you go through this exercise, you might find that you still have more questions than answers. With this in mind, here is an overview of some of the key provisions of Illinois’s divorce laws:
10 Key Provisions of Illinois’s Divorce Laws
1. The Residency Requirement
Under Illinois law, you or your spouse must live in the state for a minimum of 90 days before you are eligible to file for divorce. But, while you may have to wait to file for divorce, you do not have to wait to begin the divorce process. In fact, if you and your spouse are able to work together, you can complete the majority of the process before you file.
2. The Waiting Period for Contested Divorces
Illinois has a waiting period for contested divorces. Under Illinois law, divorcing spouses who are unable to agree on the terms of their divorce must live separately for six months before their divorce can be made final. When filing for an uncontested divorce (or “agreed divorce”), this waiting period does not apply.
3. “No-Fault” Divorce
In 2016, the Illinois legislature amended the Marriage and Dissolution of Marriage Act to make Illinois a purely “no-fault” divorce state. This means that it is no longer an option to file for divorce on fault-based grounds.
Under the current law, either spouse can file for divorce at any time based on “[i]rreconcilable differences [that] have caused the irretrievable breakdown of the marriage.” Fault can still be relevant to certain aspects of a divorce in limited circumstances, but it no longer plays the role that it did previously.
4. Prenuptial and Postnuptial Agreements
Prenuptial and postnuptial agreements are generally enforceable under Illinois’s divorce laws. While there are some exceptions, if you and your spouse both willingly signed your prenup or postnup with representation by an attorney, there is a good chance that your agreement will govern the pertinent terms of your divorce.
5. Equitable Distribution of Marital Property
Illinois is an equitable distribution state when it comes to the division of marital property. Under Illinois law, “marital property” includes most assets acquired during the marriage, and it can potentially include assets that each spouse independently owned prior to the marriage as well. The principle of equitable distribution requires divorcing spouses to consider various factors when determining what is a fair split; and, while a 50-50 split may be appropriate in some circumstances, Illinois law does not mandate equal division of marital property.
6. Child Custody and Related Matters
Under Illinois’s divorce laws, the driving force in all child custody determinations is the best interests of the children involved. While the parents’ needs and desires are relevant, they are only relevant insofar as they impact the “best interests” analysis.
Recent amendments to Illinois’s Marriage and Dissolution of Marriage Act address specific circumstances that come up in some divorces. Effective January 1, 2022, divorcing parents can seek to relocate during the divorce process (provided that they can show their relocation serves their children’s best interests), and the law requires appointment of a Court Appointed Special Advocate in cases involving allegations of abuse or neglect in most jurisdictions.
7. Child Support
Under Illinois law, divorcing spouses are required to use the Illinois Child Support Guidelines to determine their post-divorce financial obligations. As a result, unlike property division and spousal support, child support generally is not a topic of negotiation. Both parents are obligated to provide continuing financial support for their children, and Illinois now uses the “income shares” model to apportion financial responsibility.
8. Spousal Support
Illinois’s divorce laws recognize four types of spousal support: (i) temporary spousal support, (ii) fixed-term spousal support, (iii) renewable spousal support, and (iv) indefinite (or “permanent”) spousal support. Each type is available under different circumstances, and the law also establishes a set of guidelines for determining the duration of spousal support based on the duration of the couple’s marriage. This makes determining spousal support in Illinois more complex than the process in many other states, and divorcing spouses must work closely with their attorneys to make sure they are ultimately paying or receiving an appropriate amount of support.
9. Attorneys’ Fees
The amendments to Illinois’s Marriage and Dissolution of Marriage Act that took effect on January 1, 2022 also established the availability of interim attorneys’ fees in appropriate cases. Pursuant to the amendments, a divorcing spouse who cannot afford an attorney can petition the court for an award of interim attorneys’ fees so that they can obtain legal representation for the divorce process.
10. Divorce Settlement Agreements
When divorcing spouses agree on the terms of their divorce, they will enter into a divorce settlement agreement. Under Illinois law, divorce settlement agreements are subject to court approval. While judges will generally defer to the spouses’ agreement, they will also examine a couple’s divorce settlement agreement to determine if it complies with Illinois’s child custody laws, the Illinois Child Support Guidelines, and all other legal requirements.
Schedule a Free Initial Consultation with Gurnee, IL Divorce Lawyer Deanna J. Bowen
If you are considering a divorce and would like to know more about Illinois’s divorce laws, we encourage you to schedule a free initial consultation. Call 847-623-4002 or contact us online to request an appointment with Gurnee, IL divorce lawyer Deanna J. Bowen today.