Every year, thousands of Illinois residents file for and receive a divorce. Legally, a divorce (which Illinois law calls a "dissolution") is the legal process by which a marriage is ended by a court. This article presents an overview of some of the issues and considerations associated with divorce in Illinois.
Who Can File?
Anyone who resides in Illinois or who is stationed in Illinois as a member of the military may file for divorce in Illinois. However, before the court will grant a divorce, the person asking for the divorce must have lived in Illinois for at least 90 days.
When Is a Divorce Available?
Illinois law permits what is commonly called a "no-fault divorce," which means that the court will grant a divorce if it can be shown that there are "irreconcilable differences" and that these differences have caused an "irretrievable breakdown in the marriage" that are unlikely to be reconciled. If the court or the parties believe that there is some chance of reconciliation, the court may order the parties to mediate their differences.
Illinois also permits divorce where one of the parties to the marriage is guilty of some fault, such as adultery, desertion, or habitual drunkenness or drug addiction. If the parties ask for a no-fault divorce, they must have been separated for at least two years, although this period may be reduced to six months in some cases.
Temporary Orders
Because a divorce can be a long process, an Illinois court has the right to enter an order granting the parties temporary relief. These orders can require the payment of child support or maintenance (which most people call "alimony") and can govern the control and use of the property of the parties while the divorce is pending. If the circumstances change, the court also has the right to change the terms of any temporary order it has entered.
Marital Property
As part of a divorce, the court will enter an order dividing the property of the parties between them. Although the nature of a divorce often means that there will be a dispute about how this property is to be divided, in many cases, the parties actually will agree on the division of their property, and the court's order will merely reflect their agreement.
If the parties are unable to agree on how the property is to be divided, the court must determine which property is "marital property" (property acquired during the marriage) and which property is "nonmarital property" (property acquired before the marriage or otherwise excluded from the definition of marital property). Generally, the court awards the nonmarital property to its owner and divides the marital property between the parties. Depending on the circumstances, the court has considerable discretion in deciding how to divide the marital property, and the court is not required to divide it equally.
Child Custody
Another important part of many divorce cases is the question of who is given custody of the parties' children. In making this decision, the court must determine what is in the best interests of the children. Based on this determination, the court must decide who is to be given custody of the children and how much visitation the noncustodial parent may have. Because divorce is often difficult for children, the court may also order that the parties attend classes on the effects of divorce on their children. These classes are intended to help the parents make the divorce as easy as possible for their children.
Child Support and Maintenance
In addition to dividing the parties' property, the court may also order the payment of child support and maintenance, and it may also order that one of the parties provide health insurance for the children. The court has considerable discretion in setting such payments and almost always requires the payment of child support if there are minor children. The court may award maintenance if the evidence shows that one spouse has much greater earning power than the other.
Other Remedies
It sometimes happens that one spouse abuses the other, and, if this is the case, the court may enter an order of protection to prevent such abuse, whether a divorce is sought or not. In a divorce suit, the court may also order one party to pay some, or even all, of the other party's attorney's fees.
Although a divorce is usually not a pleasant experience, hiring the right lawyer to help you through the process can make it as painless as possible.
