File for Divorce in Illinois

The first step in an Illinois divorce is picking the process best suited for your divorce

What Courts Require Before a Divorce Can Start

1. Do you meet the residency requirements?

To obtain a divorce in Illinois specific residency requirements must be met. Specifically, to petition for a divorce one spouse must reside in Illinois for 90 days before the judgment will be signed by the court. This means a divorce may be filed prior to the 90 day period, but a final judgment will not be given until the 90 requirement is met. Unlike other states, Illinois has no jurisdictional rights for counties to oversee a divorce, which means a divorce should be filed at the county courthouse where the petitioner resides at the time of filing.

So What Counts?

If you’ve lived in Illinois for longer than 90 days you meet the residency requirements. Residency can be proved in numerous ways: driver’s licenses, bank accounts, bills, etc. For a more definitive list of what might constitute as proof of residency have a look at the bottom of the Illinois Student Assistance Commission’s page on the subject.

Fail to Meet Residency Requirements?

If residency requirements are not met you may still petition the county in which you reside, but a final judgment will not be granted until the 90-day threshold is met. This allows you the convenience of filing right away, which will speed up the process.

How many days have you been an Illinois resident?

2. What are legal grounds to file for divorce in Illinois?

Though Illinois used to be a state where both “no-fault” and fault-based grounds could be used to pursue a divorce, the passage of the new law in 2016 has made Illinois an entirely “no-fault” divorce state.

What does “no-fault” mean? It means that traditional grounds for divorce such as impotency or adultery can’t be used in court.

Under the new law, the only grounds for divorce that one can cite are “irreconcilable differences”. In other words, you and your spouse have differences that have caused the marriage to break down, your past attempts to improve or fix your situation didn’t work, and no amount of future effort to repair the marriage would be effective. The “why” your marriage broke down isn’t legally considered, only that for whatever reason your marriage isn’t working and can’t be repaired.

One thing the court will take into account is if both parties explicitly agree the marriage has broken down. If all aspects of the divorce case are uncontested by both sides, then there’s no waiting period or required separation period before a divorce case can be filed.

Conversely, if both sides can’t agree that the marriage has broken down, the court may require them to be separate for up to six months before filing for divorce in an attempt to give them a chance reconcile their differences. Being “separate” in this case does not mean physically living apart necessarily. Even if a couple is living at the same address, but are not living together as one unit it would be considered as living separately.

Another way Illinois is different from some states is their recognition of civil unions. Prior to the Obergefell v. Hodges ruling in 2015, same-sex couples (and opposite-sex couples) were afforded similar rights in Illinois as well as similar divorce rights due to Illinois stance on civil unions. Although couples who have a civil union do not have the exact same rights as married couples, a civil union is dissolved in a manner similar to the dissolution of a marriage.

Things You Should Know Before You Proceed

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Evictions from a Marital Home

It’s understandable that during a time of emotional upset and stress that spouses may want the other party out of the marital home ASAP. Unfortunately, this is difficult to make happen using the court system.

That’s not to say there aren’t circumstances that won’t move the court to make what’s called a temporary order if certain conditions are met.

This is particularly true of cases where evidence exists showing that a spouse is mentally or physically abusing the other spouse or the children. If it’s shown during a temporary order hearing that continuing to live with the other spouse poses a risk to the other family members the court may order them evicted for the duration of the court case until a judgment is made.

These protections are true of the new Illinois marriage law as well, the only major difference that any court-ordered eviction can no longer be appealed.

For many, if the other spouse chooses to voluntarily move out of the marital residence instead, there comes with it a temptation to change the locks. Legally, you are within your right to do so unless the court specifically orders you otherwise, but that comes with a warning. Some judges may look down on this type of behavior as unnecessarily antagonistic. Worse yet, if both spouses have title to the house, it could turn into a war of attrition with both sides continuously changing the locks back and forth. Before making a decision one way or another, we recommend consulting a family law attorney.

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Protection Orders

Particularly in cases of abuse, one party may seek an Order of Protection from the other spouse. An Order of Protection is a legal order designed to prevent one person from abusing, harassing, or interfering with the personal liberty of another person. There are several types of protection orders, including emergency orders that go into effect right away without informing the other spouse in cases where doing so would put one spouse in danger. Practically speaking, the different protection orders have the same goal: keeping you and your children safe while navigating the legal divorce process.

Abuse is not solely physical but also includes harassment or intimidation at home or in the workplace, repeated calling, stalking or following someone, and or threatening physical violence repeatedly. With this being said, all abuse in any form must be proved, so it’s best to keep a record of it in some way if possible.

Protection orders are also distributed to members of law enforcement and put into their system, meaning if your spouse were to be arrested or if you called the police because of a potential breach of conduct, the police would have the order on file. This means potential jail time and felony charges for those choosing to go against a protection order without an arrest warrant.

Orders of Protection are granted for both women and men. This type of order is governed by the Illinois Domestic Violence Act, protecting “family or household members” against violence.

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Temporary Orders and Relief

When divorce is filed it is then decided whether or not they need temporary orders put in place before the final divorce is granted. A Temporary Order is just as it sounds, a legally binding judgment that both parties must follow while the divorce is being negotiated. This often takes a financial form, such as orders to stop certain types of expenditures, freezing bank accounts, temporary payment of support, and status quo orders which seek to reasonably replicate what life was like before filing a divorce.

They can also take the form of restraining orders or stopping a spouse from disposing of property as well. The ultimate goal of any order is to maintain a level of peace and normalcy while the divorce case is still proceeding. In the case of status quo orders mentioned above, the spouse who provided insurance or paid the bills will be ordered to continue doing so until the judgment is final.

A Temporary Order is not final and will likely be changed or completely end at the time of the final divorce judgment. Many times a Temporary Order is needed when one spouse is the primary breadwinner and the other spouse is either a homemaker or earns substantially less.

Know Your Basic Rights

Determine Parental Responsibilities (Custody) and Parenting Time

When minor children are involved in a divorce parents must make decisions on the custody and placement of the children. With the passage of the new 2016 law, the terms “custody” and “visitation”, often associated with divorce cases, have been replaced by “parental responsibilities” and “parenting time”.

Custody vs. Parental Responsibilities.
In the old law, and in a lot of people’s common understanding of divorce, the term “custody” often comes to mind. Having legal custody of the children meant in simple terms that you had full decision-making ability over them, including their health and education and what sports teams they joined.

With the new law, custody is replaced by “parental responsibilities” which are defined as health, education, religion and extracurricular activities. By dividing parental responsibilities into four separate entities, it also means that parents (or a judge) must divide the responsibilities one by one. So for instance, parents could decide to make decisions about their children’s health and education together, but leave the religious upbringing or the extracurricular activities to another. The aim of this new system is to move away from a winner-takes-all system, where the parent with custody effectively controls all major aspects of their children’s life.

Soon after filing a divorce you will need to submit a parenting plan either together with your spouse or separately outlining the division of these responsibilities.

Parenting Schedule vs. Physical Custody/Visitation
Along with changes to legal custody, the new law also changes how physical custody and visitation work. In the old law, the child would primarily live with the parent who was awarded physical custody and the other parent would be granted visitation. This model is now gone as no parent is deemed as having “custody”, and instead, parents or the court work out a parenting schedule. A parent with the most parenting time throughout the year is still considered the “custodial parent” for legal purposes but isn’t necessarily given any special privileges as a result. The court will always encourage maximizing the involvement of parents in their children’s lives, including schedule.

Ensure Child Support is Enforced & Accurate

In Illinois, when going through a divorce involving minor children, it is required to also come to a child support arrangement even if one spouse is unemployed or can’t be found. The goal of child support is to make sure children maintain the same quality of life, even after their parents split up.

Changes in the Illinois law mean that child support is now determined by the income shares model. In the old law, a flat percentage was taken from the parent who did not have custody of the child. However, as we detailed above, with the new law the concept of custody has been done away with, and with it the way that child support is determined.

Since no parent has custody of the child, instead child support is determined by looking at both parent’s net income, and then figuring out how much each parent contributes. In an amicable situation where parenting time is split down the middle, this means that the higher earning spouse will owe the lesser earning one. This can get complicated by lopsided parenting schedules, or if the court determines other payments must be included in child support such as outstanding medical payments or money for extracurricular activities.

The income shares model uses charts determined by a large study conducted by the state, how much it costs a family living as one family unit to raise children based on their income.

 Factors Determining Child Support Under the Income Shares Model

  1. Standard Child Support Obligation: This is an amount predetermined by the state of Illinois as to how much it costs to raise a child based on both parents net income (income after taxes) and the number of children. The child support obligation is then divided proportionally between the parents based on their individual contribution to the total “household net income”.
  2. Additional Expenses: Additional expenses are then factored into the Standard Child Support Obligation. These will include child care costs and extraordinary medical expenses predetermined by the state of Illinois. Other costs may also include extracurricular activities and or outstanding medical or health insurance expenses.
  3. Parenting Time: Once the total Child Support Obligation is determined, the time spent with each parent will dictate which parent receives child support. If parents split time evenly, which means each parent has the child for over 40% of the year, the child support obligation is multiplied by 1.5.

Dividing Property, Assets & Debt

Illinois is an “equitable division” state when it comes to dividing property in a divorce. This means that unlike a community property state where everything is divided down the middle, in Illinois everything deemed “marital property” is divided out in “just proportions”. The idea of the division is to be as fair as possible, taking a number of factors, such as the age and health of each spouse or their financial situation, into account. Property and asset division can quickly become one of the most complex aspects of any divorce case is a primary reason why people hire an attorney.

Defining “Just Proportions”
One must understand going into a divorce case there is no fixed way that property and assets are divided out among couples. The law takes into consideration aspects like the earning potential of each spouse, how much they contributed financially to the marriage, their health, their age, the length of their marriage and a number of others.

Marital Property
Marital Property in Illinois is defined as anything acquired during the marriage regardless of title ownership, with the exception of property acquired via a gift or inheritance. This includes, but is not limited to:

  • Cash/Money Deposits
  • Cars and Other Vehicles
  • Family Home(s)
  • Furniture and Appliances
  • Vacation Home(s)
  • Retirement Investments & 401k plans
  • Pension Plans
  • Debts, Loans, and Mortgages accumulated during married life

As you can see, this list is essentially a comprehensive list of everything a couple owns. It’s worth stating again that this classification is true even for items like cars and property with only one of the spouse’s name on the title.

Separate (Non-Marital) Property
Separate Property, also called non-marital property, is anything acquired or bought before the marriage that was kept separate. An extremely common example is a birthday gift given explicitly to one spouse, would not (necessarily) be considered marital property. Another example would be a car that was bought before the marriage, but this is only true if the other spouse’s name was not added to the title. There are many examples where non-marital property can become marital, like adding names to a document or commingling funds from bank accounts. When in doubt, it’s always best to consult an attorney.

  • Student Loans were taken out before the marriage
  • Cars brought into the marriage
  • Separate 401k account established before marriage that was never contributed to during the marriage
  • Anything acquired explicitly as a gift or through inheritance

This also includes anything that was specifically deemed non-marital in a prenuptial agreement. The court will always honor these types of agreements when it comes time to divide property.

Get Fair Alimony Orders

Alimony, also known as spousal maintenance or spousal support, is an amount paid to another spouse in order to help them gain financial independence. Illinois uses a standard formula to calculate maintenance, though the amount determined is only a guideline and the exact amount may vary at the judge’s discretion.

Duration
The duration of maintenance payments is determined in large part by the length of the marriage.

  • Marriage 0-5 years= married years x 20%
  • Marriage 5-10 years = married years x 40%
  • Marriage 10-15 years = married years x 60%
  • Marriage 15-20 years = married years x 80%
  • Marriages of 20+ years = the court will either order indefinite maintenance or maintenance equal to the length of the marriage itself.

Amount
As mentioned previously, Illinois uses a standard formula for spouse’s whose combined income is less than $250,000.
(30% of the payer’s income) – (20% of the receiver’s income)

No matter what, the amount paid cannot exceed an amount equal to 40% of the combined income.

The number arrived at by the formula is only a starting point or a guideline for a judge who will then take other into account other considerations that are unique to the marriage such as:

  • The income and properties held by each spouse, taking into account the property division process
  • The needs of each spouse
  • The age, income, job skills, employability, and physical health of each spouse
  • The length of the marriage
  • Earning capacity and career potential of each spouse
  • Tax consequences as a result of the property division aspect of the divorce
  • Reductions to career and earning potential as a result of one spouse delaying or stopping their career advancement as a result of marriage or childcare
  • Any agreements made by either spouse in a prenuptial or post-nuptial agreement
  • Contribution by one party to the increased earning power of the other
  • The time required by the spouse seeking maintenance to secure job training or education necessary to advance their career and employment prospects
  • The couple’s standard of living during the marriage
  • Any other factor the court considers to be “just and equitable”

Pick a Filing Method to Begin the Illinois Divorce Process

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