If you are contemplating a divorce in Illinois there are several issues you should consider, such as legal separation, grounds for divorce, annulment, residency requirements, and property division. An Illinois divorce will legally end your marriage allowing you and your ex-spouse to become legally single and re-marry if desired. Divorce can be a complicated and emotional matter. An Illinois divorce attorney should be consulted.
Legal separation is an alternative to obtaining a divorce in Illinois. A legal separation does not end a marriage and the spouses may not enter into a new marriage. Legally separated spouses cannot divide ownership of property as in a divorce, unless they have made an agreement. Legal separation in Illinois may be obtained as long as both parties are living separate and apart from his or her spouse without fault. If a spouse is living separate and without fault he or she can bring an action for legal separation in Illinois to obtain a court order on issues such as support and use of property. It is important to discuss all legal separation issues with an Illinois divorce attorney.
Grounds For Divorce
When you file for divorce or “Dissolution of Marriage,” you must state the reasons you want a divorce, commonly known as “grounds for divorce.” Currently, Illinois recognizes fault grounds and no-fault grounds for divorce. Deciding which ground for divorce you should pursue can be complicated and an Illinois divorce attorney should be contacted.
Fault Divorce: If a spouse is filing for a fault divorce he or she is claiming that the other spouse was at fault for the divorce. Valid fault grounds for divorce may be:
No-Fault Divorce: Filing for a no-fault divorce means that the spouse filing the petition does not have to claim that the other party is at fault in some way in order to get a divorce. In an Illinois no-fault divorce the parties must have lived separately for more than 2 years (can be reduced to 6 months before the final judgment of divorce if both parties agree), and the petitioning spouse will need to state the grounds for divorce as irreconcilable differences.
Divorce Residency Requirements
To properly file for a divorce in Illinois, residency requirements must first be met. One of the parties to the marriage must have been a resident of Illinois for six months and a resident of the county in which the petition is filed for the 90 days preceding the filing. Paperwork for the divorce should be filed with the Circuit Court of the county in which you or your spouse resides.
Availability of Simplified or Special Divorce Procedures:
Parties may file for a simplified divorce procedure known in Illinois as a “joint petition for simplified dissolution” if they certify that all of the following conditions exist when the proceeding is commenced:
In Illinois, an annulment is called a “declaration of invalidity,” a declaration that the marriage was never valid to begin with and does not require the ‘ending’ of it by divorce. If a determination is made that declaring the marriage invalid to begin with would be unfair for some reason, the court can declare a marriage invalid from the date of the order. A marriage can be annulled in Illinois due to a legal or physical incapacity to enter into the marriage, such as being under age, under the influence of drugs or alcohol, lack of parental consent when required, or previously married. To seek an annulment, you will need to file a petition with the Clerk of the Circuit Court. Speaking with an Illinois divorce attorney will help you determine if an annulment is right for you.
Property Division in an Illinois Divorce
Property is divided between two spouses in an Illinois divorce through “equitable distribution.” This system of property division is also known as “common law” or “marital property.” In Illinois, marital property (belongs to both spouses) is all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage / divorce, including non-marital property transferred into some form of co-ownership between the spouses. Property is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, or community property. The presumption of marital property is overcome by a showing that the property was “non-marital property.”
Examples of “Non-Marital property” in Illinois are: property acquired by gift, legacy or descent; property excluded by valid agreement of the parties; property acquired before the marriage; and property acquired by a spouse after a judgment of legal separation. This is not an exclusive list and can be altered at the discretion of the court. It is important to discuss these matters with an Illinois divorce attorney.
Links to Divorce Statutes