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The laws of Illinois governing divorce are contained in "The Illinois Marriage and Dissolution of Marriage Act" 750 ILCS 5/401 et. Seq (IMDMA), which may be found at this link. The statute also governs issues affecting children, distribution of property, and issues of support and maintenance.
It is important to remember when reading this law that it uses the phrase “dissolution of marriage” instead of the word “divorce.”
Initial considerations for Divorce
A divorce case is commenced by the filing of a document entitled "Petition for Dissolution of Marriage." Once filed, it needs to be served to the other spouse with the Petition by the Sheriff or a private process server. As an alternative, the spouse can file papers individually or through an attorney.
Who can file for divorce (“dissolution of marriage) in Illinois?
Either of the spouses can file for a dissolution of marriage in Illinois, so long as
- a. that spouse is an Illinois resident or stationed in Illinois while a member of the armed services,
- and
- b. that spouse has maintained his or her residency in Illinois for at least 90 days prior to filing.
How does a person choose the proper county in which to file?
In the law, this is called finding the proper “venue” in which to file. Illinois law says that proceedings are to take place in the county where the plaintiff (the spouse who filed the divorce) or the defendant resides.
It is possible for a defendant (the spouse who is being sued for a divorce) to object to the county in which his or her spouse filed the divorce. But there are specific legal requirements for when and how such an objection must be made. Failure to abide by these legal requirements would mean that a defendant would waive any objection to the county in which a dissolution of marriage was filed.
Sometimes a spouse who is likely to initiate matrimonial proceedings has moved from the marital residence into a different county. Since he/she is a resident of a new county, he/she may initiate matrimonial proceedings in the new county of residence. This may be done immediately and without any waiting period.
Grounds for Divorce
The most commonly used ground for divorce in Illinois is irreconcilable differences, also known as no fault.
In such a case, the spouses are required to prove that there is (1) a breakdown in the marriage, (2) that they have been living separately for two years, (3) that they have attempted counseling, and (4) that all efforts to reconcile have failed. A judge can limit the period of separation to six months in certain cases.
Other grounds which may be used are mental cruelty, physical cruelty, habitual drunkenness or a drug habit, adultery, impotence, and imprisonment.
Division of Property
Divorce laws regarding property division in Illinois do not presume that property will be divided 50 / 50. Illinois is referred to as an “equitable division” state (as opposed to being a “community property state” as are some other states). This means that property is divided “equitably.” This does not necessarily mean “equal” or 50/50. Its meaning is closer to “fair” and “just.”
All property owned by either spouse may be categorized under Illinois law as either marital property or non-marital property.
“Marital property” means all property acquired by either spouse after the marriage, except the following, which is known as “non-marital property”:
- 1. property acquired by gift, legacy or descent;
- 2. property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent;
- 3. property acquired by a spouse after a judgment of legal separation;
- 4. property excluded by valid agreement of the parties;
- 5. any judgment or property obtained by judgment
- 6. awarded to a spouse from the other spouse;
- 7. property acquired before the marriage;
- 8. the increase in value of property acquired by a method listed in numbers (1) through (6), irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effort of a spouse, or otherwise (subject to the right of reimbursement provided in Illinois Statute, Ch. 40, Section 503(c)).
- 9. income from property acquired by a method listed in numbers (1) through (7 if the income is not attributable to the personal effort of a spouse.
As you can see, this definition is somewhat complicated, but it should at least provide you some idea of how the law works. It is advisable to consult an attorney in any case involving divorce or the division of property.
If property is considered to be “marital property” under Illinois law, it is then subject to division between the spouses upon a divorce (dissolution of marriage). Illinois law requires property to be divided equitably, not according to a specified formula.
Many divorce cases are resolved by the court – or settled by the parties – with 60 / 40 or 70 / 30 splits and some even allocate ALL marital property to one spouse. Factors which the court see to distribute the property are Contribution, Homemaker Contribution, Value of Non-marital Property Assigned, Duration of the Marriage, Relevant Economic Circumstances, Prior Marriages, Agreements, Situational status, Custody of Children, Maintenance, Future Income and Tax Consequences.
To fully understand divorce law and family law, it may be necessary to read and interpret statutes with case law and regulatory law. It is important to check to see if laws are up date. For these and other reasons, it is always best to consult with a qualified family law attorney. The legal information on this website is not intended as legal advice and should not be relied on as such. It is intended only as an introduction to the way that the law functions in these areas.
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