Is Illinois a No-Fault Divorce State?

Yes: irreconcilable differences is the only ground

Yes. Illinois is a no-fault divorce state: the only ground for a divorce is that irreconcilable differences have caused the irretrievable breakdown of the marriage. Under 750 ILCS 5/401(a), the court enters a judgment of dissolution when that is true 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. Neither spouse has to prove that the other did something wrong.

Illinois law used to be different. Before Public Act 99-90 took effect on January 1, 2016, Section 401 also listed fault grounds, including adultery, desertion for one year, habitual drunkenness for two years, extreme and repeated physical or mental cruelty, and conviction of a felony. The same Act removed the old rule that a no-fault divorce required the spouses to live separate and apart for more than two years, or six months if both spouses signed a written stipulation (Public Act 99-90). Today, a petition does not need to accuse anyone of anything.

In an Illinois no-fault divorce, "no-fault" describes the reason for the divorce. It does not mean the divorce happens automatically, and it does not mean nothing your spouse did can come up. The sections below explain where conduct still matters.

The six-month separation presumption

If you and your spouse live separate and apart for a continuous period of at least six months immediately before the judgment, the law presumes irreconcilable differences, and that presumption cannot be rebutted (750 ILCS 5/401(a-5)). Your spouse cannot argue the point once the six months are met.

Three things about this rule help in practice:

• You do not have to separate before you file. The six months are measured immediately before the judgment, so they can run while the case is pending.
• The presumption is a shortcut, not a requirement. A court can find irreconcilable differences without six months apart.
• Section 401 does not define "separate and apart." If you still share a home, ask a lawyer how the court is likely to view your situation before you rely on the presumption.

Does adultery or other misconduct matter in an Illinois divorce?

Usually not to the outcome. Illinois divides property and decides maintenance without regard to marital misconduct, but spending marital money on an affair can be raised as dissipation, and conduct that affects a child can matter to parenting decisions.

Property division

The court assigns each spouse's non-marital property to that spouse and divides the marital property "without regard to marital misconduct in just proportions," considering all relevant factors (750 ILCS 5/503(d)). The factors include each spouse's contributions, the length of the marriage and each spouse's economic circumstances. An affair is not a reason to give the other spouse a bigger share. To see how the factors work, read what a spouse is entitled to in an Illinois divorce.

Maintenance (alimony)

The same rule applies to maintenance. The court may grant maintenance in amounts and for periods it deems just, "without regard to marital misconduct" (750 ILCS 5/504(a)). The court first decides whether maintenance is appropriate by looking at factors such as each spouse's income, needs, earning capacity and the standard of living during the marriage. Cheating does not raise or lower the amount. Our guide to Illinois spousal maintenance explains the calculation.

Spending marital money on an affair

Spending marital money on an affair can still matter, because one of the property division factors is "the dissipation by each party of the marital property" (503(d)(2)). Paying for trips, gifts or a separate apartment for a new partner from marital funds while the marriage is breaking down is the kind of spending a dissipation claim can raise.

A dissipation claim has strict conditions. The spouse making it must give a notice of intent no later than 60 days before trial or 30 days after discovery closes, whichever is later. The notice must state, at a minimum, when the marriage began undergoing an irretrievable breakdown, what property was dissipated, and when the dissipation happened. A certificate or service of the notice must be filed with the clerk, and the notice must be served (503(d)(2)(i) to (iii)). The statute also limits how far back a claim can reach (503(d)(2)(iv)). See dissipation of marital assets in an Illinois divorce.

For how spending on a new partner can come up while a divorce is pending, see dating during a divorce in Illinois.

Parenting time

In allocating parenting time, the court does not consider a parent's conduct that does not affect that parent's relationship to the child (750 ILCS 5/602.7(c)). The same rule applies to significant decision-making responsibilities (750 ILCS 5/602.5(e)). An affair, by itself, is not a parenting factor. Conduct that does affect a child is different: the best-interest factors include physical violence or threats of violence by a parent against the child or another household member, and the occurrence of abuse against the child or another household member (602.7(b)(11), (14)).

What you still have to show to get divorced

You still have to meet the 90-day residence rule, and the court still has to find that irreconcilable differences caused the breakdown of the marriage.

The 90-day residence requirement

When the case starts, one spouse must be an Illinois resident, or be stationed in Illinois as a member of the armed services. That residence or presence must have lasted for the 90 days before the case was filed or before the court makes its finding (750 ILCS 5/401(a)). Only one spouse has to meet it.

What the petition says

The petition for dissolution of marriage must be verified and must state that the residence requirement is met and that irreconcilable differences have caused the irretrievable breakdown of the marriage (750 ILCS 5/403(a)(3)). It also lists basic facts such as each spouse's age and residence, the date and place the marriage was registered, any children, and the relief requested (403(a)). Read our guides to the petition for dissolution of marriage and how to get a divorce in Illinois.

Before entering the judgment, the court must also have considered, approved, reserved or made provision for parental responsibilities, child support, maintenance and the division of property (401(b)). A no-fault ground ends the marriage, but those issues still have to be settled or decided.

If your spouse says the marriage is not over

Your spouse cannot block an Illinois divorce just by refusing to agree, but your spouse can contest whether irreconcilable differences exist, and the court decides that issue first. Contested trials are bifurcated, with the irreconcilable differences issue tried first, whether or not it is contested (403(e)). Once the court finds that irreconcilable differences caused the breakdown, it may allow time for the spouses to settle the remaining issues or go straight to trial on them, and it enters the judgment only at the end of the case.

The six-month presumption matters most here. If you have lived separate and apart for at least six continuous months before the judgment, the presumption is irrebuttable (401(a-5)). Without it, the court looks at the facts, including whether reconciliation efforts have failed or would be impracticable (401(a)).

If your spouse is not taking part at all, read what happens if your spouse won't sign divorce papers. If you are not ready to end the marriage, some couples look at a legal separation instead.

Talk with a Chicago divorce lawyer

A consultation can help you sort out whether anything that happened in your marriage matters to property, maintenance or parenting in your case. Chicago Family Attorneys handles family law only, for clients in Chicago and Cook, DuPage, Lake and Will Counties, from its office in Chicago.

When every issue is agreed, the firm's attorney-handled uncontested divorce is a $1,500 flat fee (court filing fees not included). For a contested case, full representation is an initial payment of $1,500 to $2,500, then $500 to $650 per month beginning 30 days after the initial payment while representation remains active. Fees are confirmed in writing before you engage the firm, and no lawyer can promise a particular result.

Consultations are by phone; a free weekend consultation is available by Zoom. Call 312-965-5618, or learn more on our Chicago divorce attorneys page.