Illinois Divorce Laws

A Basic Overview

There is no waiting period for an uncontested divorce, but you must be an Illinois resident for at least 90 days to file for divorce. Under statues 750 ILCS 5, Illinois divorce laws lay the ground rules related family and divorce including adultery, 401k, pension, alimony, child custody and support, and property division.

Infidelity (Adultery) in Illinois

Illinois is a no-fault state. This means you can file for divorce on the grounds of “irreconcilable differences” (efforts at reconciliation have failed). Unless a spouse's infidelity caused significant financial or provable emotional strain, adultery won't be considered when deciding the various aspects of your divorce settlement.

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401k and Pensions in an Illinois Divorce

As an equitable distribution state, Illinois divorce laws allow the court divide all property between the two parties, including retirement accounts (401k, pensions, etc), based upon what they believe is equitable. Pensions are paid out when the account can start making payments. Pensions for state employees have more complicated rules determining how they are paid out. A 401(k) is easier to divide and the payout will usually be determined as a percentage that is paid one of several ways. In the case of a cash payment, the IRS would treat this as taxable income.

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Spousal Support (Alimony)

In some cases, especially in those where one spouse earns significantly more than another, a judge may order spousal support (also known as alimony). This is done after consideration of a number of factors. Once a maintenance award is deemed appropriate, the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) provides a formula for determining the spousal maintenance amount and length of time.

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Disabled Spouse Divorce Laws

When a couple divorces in Illinois, the settlement determines who pays spousal support (alimony) to the other and for how long. In some cases, this support can continue indefinitely. Permanent maintenance (spousal support) is especially important if one spouse is disabled and has no realistic chance of becoming financially self-sufficient. Even if you collect Social Security Disability Insurance benefits, you may still be entitled to spousal support.

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Child Custody in Illinois

In Illinois, child custody is now referred to as “parental responsibilities and decision making” and determines who makes the decision about your child's education, extra-curricular activities, health, and religion. In Illinois, visitation is now referred to as “parenting time”. The court favors a parenting plan where both parent's time with the child is maximized. In the case where both parties cannot agree, a judge will ultimately decide for you based on the best interests of the child.

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Child Support Laws in Illinois

In Illinois, child support is determined by a shared-income model. Both parent's net income and how much time the child spends with each parent is used to determine who pays and how much. The ultimate goal of child support is not to “punish” one spouse, but to ensure your children have the stability they need once you're separated.

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Property Division Laws in Illinois

Illinois is an equitable distribution state when it comes to property division in a divorce. This means roperty and assets might not be divided down the middle. Instead, the division of property is determined by a number of factors including how much each side contributed to the marriage, what marital and non-marital property they have, child-rearing costs. Generally speaking, property division is often the most difficult task of any divorce in Illinois.

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Health Insurance

People who were on their spouse's health insurance often struggle after a divorce as many group policies will not cover an ex-spouse. Losing your health insurance because of this will, under the ACA, allow you to apply for new coverage. Additionally, you may continue staying on your spouse's healthcare plan by filing a temporary order until the divorce is finalized.

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No-Fault Divorce in Illinois

Illinois is one of many “no-fault” divorce states, meaning that the only reason a judge will accept for the divorce is “irreconcilable differences”. This also means that a spouse cannot pursue more damages because of how the marriage ended. No fault also has its advantages. If both parties agree that the marriage has broken down and the divorce is uncontested, there is technically no waiting period to proceed with a divorce.

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Remarriage After a Divorce

In Illinois, there is no waiting period between getting a final judgment on your divorce and remarrying. One thing to keep in mind is that should you or your spouse remarry, any spousal support will be terminated. This is also true if the spouse receiving spousal support is cohabitating or taking significant steps towards building a life with another person.

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For more specific Illinois divorce laws, see the Illinois Compiled Statutes, Chapter 750, Act 5 – Illinois Marriage and Dissolution of Marriage at ilga.gov.

Divorce Options that Work for You

There are three basic types of divorce. The first step getting divorced in Illinois is to decide which process is right for you.

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