Fault Divorce in Illinois
All U.S. states now have no-fault grounds for divorce. However, Illinois is somewhat unusual — in that Illinois also currently provides for fault-based grounds for divorce. Obtaining a no-fault divorce in Illinois generally requires a two-year waiting period. Fault divorces are quicker, however, and require no waiting period. Still, the spouse seeking a divorce does have to prove fault, which can be difficult.
Illinois law provides for several different fault-based grounds for divorce and include the following:
- One spouse is impotent at the time of the marriage, and continues to be impotent;
- Bigamy — one spouse had another husband or wife alive at the time of the marriage;
- Willful desertion for a period of at least one year, including any time during which a divorce or legal separation was pending;
- Habitual drunkenness for at least two years;
- Excessive drug use which becomes a controlling purpose of the spouse’s life, for at least two years;
- An attempt to take the other spouse’s life;
- Extreme and repeated cruelty, either mental or physical;
- Conviction for a felony or other serious crime; or
- Infecting a spouse with a sexually transmitted disease.
Mental cruelty is the most common fault ground. If contested, however, this may be difficult to prove. Mental cruelty requires evidence that a spouse acted purposely and with the intent to cause suffering. Moreover, the filing spouse must also prove that the cruelty adversely affected him or her.
Although Illinois does provide for fault-based divorce, Courts do not consider the wrongdoing that may lead to a divorce when determining property settlements or the amount of alimony to be awarded. However, there is an exception to this rule if the wrongdoing has caused marital waste. If, for example, a spouse has spent money on a drug addiction or an extramarital affair, that waste may then be taken into account in dividing the marital property. Additionally, the Court may consider fault when making decisions regarding child custody and visitation.
Illinois does not require any pre-filing waiting period for fault-based divorce, as long as a couple satisfies the residency requirement. A person may file for divorce in Illinois as long as one spouse has resided there for at least 90 days before the judgment of dissolution is entered. This means 90 days before the divorce is finalized, not 90 days before filing for divorce. Yet if the spouse has lived in Illinois for fewer than 90 days before filing, the divorce petition may be dismissed if Illinois does not have jurisdiction over both spouses, or if another state already had jurisdiction in the case.
Change is Coming
The state of Illinois recently passed Senate Bill 57, which will go into effect on January 1 of next year. This bill makes significant changes to many aspects of Illinois family law, and, as such, taking these changes into consideration is important if you plan on pursuing a divorce.
Speak with a Palatine Attorney Today
Proving fault in a divorce case can be difficult. If you want to file for a fault divorce in Illinois, an experienced attorney can help you choose the grounds that are best suited to your case and help you assemble evidence to support your allegations of fault. If you are considering filing for divorce, please contact skilled Palatine family law attorney Nicholas W. Richardson for a free initial consultation.