No-Fault Divorce

What is no-fault divorce in Chicago?

It is a no-fault divorce when you file on the grounds of irreconcilable differences. This means you do not have to prove that your spouse is at fault for the breakdown of the marriage. As of 2016, irreconcilable differences are the only grounds for divorce recognized in Illinois.

How did Illinois become a no-fault divorce state?

Illinois became a no-fault divorce state on January 1, 2016, when Public Act 99-90 went into effect. This act eliminated all fault-based grounds for divorce, including adultery, physical or mental cruelty, abandonment, habitual drunkenness, impotence, and substance abuse.

A spouse petitioning for divorce is no longer required – or even allowed – to prove the other spouse is at fault for the disintegration of the marriage.

What must you prove to get a no-fault divorce?

In Chicago, North Shore, or anywhere in Illinois, you must prove three elements to get a no-fault divorce:

  • Irreconcilable differences have caused your marriage to break down irretrievably.
  • Past efforts at reconciliation with your spouse have failed.
  • Any future efforts at reconciliation would be impracticable (impossible in practice to do or carry out) and not in the family’s best interests.

How does a no-fault divorce affect the terms of divorce?

Grounds of irreconcilable differences take some conflict out of the divorce process, as neither spouse is allowed to blame the other for the end of the marriage. Courts do not take accusations of marital misconduct into consideration in deciding how to divide property or award spousal maintenance. However, the court may take a spouse’s accusations into consideration in allocating parenting time and parental responsibilities.

What happens if a spouse contests a no-fault divorce in Chicago?

If you and your spouse agree that you have irreconcilable differences, your divorce petition will be approved, and when a settlement is reached, your marriage can be dissolved. If, on the other hand, one spouse wants to attempt a reconciliation and contests the divorce, a waiting period is required. If you live “separate and apart” from your spouse for at least six months, this is considered a presumption of irreconcilable differences, and your divorce petition will be granted.

What does it mean to live “separate and apart”?

For the purposes of no-fault divorce in Illinois, living “separate and apart” does not necessarily mean living in separate residences, although that could be the case. It means no longer living as spouses. If you still live under the same roof, possibly because of your children, you should be sleeping in separate rooms, maintaining separate finances, and no longer doing the things that married people do for and with each other.

How are marital assets divided in a no-fault divorce?

The first step in division of marital assets is to determine which property is marital and which is separate. If a spouse owned property before the marriage or acquired it through inheritance during the marriage, that property is separate. Family courts follow equitable distribution laws in Illinois. This does not necessarily mean a 50/50 split. Marital assets may be divided 40/60 or 30/70, for example, depending on the circumstances in a particular case.

The goal of the court is to divide marital property fairly and justly, which does not always mean equally. Factors the courts consider include:

  • Length of the marriage: The shorter the marriage, the more likely the court is to award a 50/50 split of marital assets. In longer marriages when there is a discrepancy in income between the spouses, the court is more likely to award the spouse with less earnings a larger share of the marital property.
  • Earning power of both spouses: A homemaker, who will have less earning power after a marriage is dissolved, is more likely to be awarded a larger split of the marital property.
  • Children: The children of a marriage are an important factor in deciding division of marital assets. As judges prefer to keep children in their family home and the same school district, one spouse is likely to be awarded the family home as part of his or her share of the marital assets.

What about a settlement agreement in a no-fault divorce?

If you and your spouse can reach a settlement agreement, you can divide your assets and debts on your own in a no-fault divorce. In fact, you can use your settlement agreement to resolve every issue of your divorce. A judge must review and approve this agreement before your divorce becomes final. Under state law, a family judge cannot approve any settlement agreement that is obviously unfair or one-sided.

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