How Illinois Courts Handle Adultery

Illinois is one of a handful of states where adultery, or cheating with a married person, is a crime. According to the law, adultery is a misdemeanor punishable with a fine and up to one year in jail. However, adultery laws are rarely, if ever, enforced in Illinois.

What Are Illinois’ Adultery Laws?

The last update to Illinois adultery laws was in 1961. By law, adultery is defined as having sexual relations with someone who is not your spouse in an “open and notorious” way[1].

What behavior explicitly falls under “open and notorious” is up for debate. Regardless, adultery remains a Class A misdemeanor that can land you a fine of up to $2,500 and up to a year in jail.

In reality, even though the law is still around it is rarely enforced. The last time it was used was in 1997 in a case where the prosecutors were baffled to see it actually used[2].

So why have the laws at all? That’s hard to say. Maybe lawmakers don’t want to publicly take a stance for getting rid of them. Or maybe getting rid of a law that will never get charged is just more trouble than it’s worth.

How Does an Affair Impact My Divorce?

In order for a person to get a divorce in the past, they had to prove their spouse did something wrong. The reasons could be things like desertion, cruelty, or adultery.

In 2016, Illinois made some huge updates to its divorce law. One of the biggest changes was that Illinois officially became a No-Fault divorce state. This means that you no longer have to prove any sort of wrongdoing to get a divorce. Currently, the only reason accepted for divorce in Illinois is irreconcilable differences.

Many people expect a cheating spouse to be “punished” as part of a divorce. They think that proof of infidelity is enough to sway a judge when deciding child custody or alimony. However, this is not the case. Adultery can’t be used as legal grounds to make decisions on property division, child custody, or support.

That isn’t to say an affair would have no impact whatsoever. For instance, what if an unfaithful spouse spent money from marital assets on the affair? This is called “dissipation” of marital funds, and a judge might consider adjusting the property division to account for this.

Also, if an affair can be decisively proven to have a negative effect on your children’s wellbeing, it might affect the outcome. Such proof would need to be tangible and compelling for it to be taken into account.

What Should I Do If I Suspect My Spouse is Having an Affair?

Unfortunately, there is not much you can do beyond trying to get as much tangible proof of it as possible. But you should always be mindful of how you collect it and to make sure it’s legal. In Illinois, it is against the law to record conversations without consent. If you are in doubt about what is an isn’t legal, it is best to consult Illinois’ privacy laws[3].

If you’re considering using a private investigator, we would instead recommend an experienced family attorney. Private investigators can be extremely expensive, and may not gather the type of proof that would say a judge. Remember, proof of the affair alone would not be enough to affect the outcome of a divorce judgment.

Since family attorneys work regularly in the family law system, they could best advise you on what evidence would help your case.

Frequently Asked Questions

Can you go to jail for adultery in Illinois?

Technically speaking, yes. Practically speaking? No.

The law indeed states that offenders charged with adultery can face up to a year of jail time. That law, however, is rarely ever enforced. To complicate things further, the language of the law is ambiguous, making it difficult for prosecutors to make an adultery charge stick.

How does adultery affect divorce in Illinois?

Illinois is a no-fault divorce state, meaning that you do not have to prove marital misconduct to get a divorce. It also means that misconduct like adultery can’t be considered when deciding property division, child support, alimony, and child custody.

That said, if you can prove that an affair had a noticeable financial effect, or affected the emotional wellbeing of your children, a judge might take it into consideration. However, evidence of an affair alone would not be considered enough to alter a divorce judgment.

Can you press charges for adultery?

Once again, the answer is that technically you can but it’s unlikely they’ll go far. No one has even attempted to charge adultery in Illinois since 1997. Truth be told, the chances of successfully prosecuting someone for adultery is unlikely.

If a spouse’s affair is affecting you or your family, it may be time to seriously consider divorce.

Is Illinois a no-fault divorce state?

Yes. In 2016, Illinois updated its divorce laws to make it a truly no-fault divorce state. In a no-fault divorce state, you don’t need to prove infidelity, desertion, abuse, or any other reason to get a divorce.

Instead, the only reason needed (and the only one a judge will accept) is that there were “irreconcilable differences” in the marriage. This update in the law is to try and reduce the conflict in divorce, award judgments purely based on need, and allow spouses in abusive situations to end their marriages more easily.


References: [1]Defining Adultery, [2]1997 Case, [3]Privacy Laws

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