In Illinois, divorce is governed by the Illinois Marriage and Dissolution of Marriage Act (the “Illinois Divorce Act”), Illinois Supreme Court Rules, and the local Court Rules in the Judicial Circuit where the divorce is filed.
Divorce cases in Illinois are generally referred to as Contested or Uncontested. Contested divorces are those in which the spouses cannot agree upon issues concerning the divorce, such as the division of property or child custody issues. Uncontested divorces are those in which the spouses are in agreement on all matters concerning the divorce.
Additionally, divorces include those With Children and those Without Children. If you have children, the stakes are much higher.
Obtaining a divorce in Illinois is not as simple as showing up at the courthouse and signing divorce papers. In order for a divorce to be granted, certain requirements must be met including those concerning showing proper Grounds for Divorce, Jurisdiction, Venue and Pleading.
If you want to be divorced in Illinois, you must prove a legally recognizable basis (Grounds) for the Court to grant you a divorce. There are No-Fault and Fault Grounds for seeking a divorce in Illinois. There are major differences as far as what you must prove and how long you must wait for the divorce to be finalized.
In No-Fault Divorces Irreconcilable Differences must be proven. If you are pleading Irreconcilable Differences Sec. 401 of the Illinois Divorce Act requires you and your spouse to either: “have lived separate and apart for a continuous period in excess of 2 years,” or both sign affidavits waiving the 2 year waiting period and “have lived separate and apart for a continuous period of not less than 6 months.”
In Fault Divorces, one of the spouses (the spouse seeking the divorce) must claim a reason for the divorce based upon an action of the other spouse. This “action” is referred to as the “grounds” for the divorce.
There are numerous Fault Grounds set forth in Sec. 401 of the Illinois Divorce Act, which may be claimed, including: mental cruelty, adultery, abandonment, habitual drunkenness, conviction of a felony, and others. Mental Cruelty is the most common fault based ground, which means that there have been two or more incidents of unprovoked, offensive conduct toward one’s spouse which causes embarrassment, humiliation, and anguish.
Unlike with a No-Fault Divorce, there is no requirement that the spouses have lived apart for at least six months when the divorce is based upon Mental Cruelty. So, if there are grounds for Fault, the divorce process can be finished sooner.
If you want to be divorced in Illinois, either you or your spouse must have resided in Illinois for at least 90 days before filing for the divorce or the entry of the Judgment of Dissolution (This is the Jurisdiction requirement). The divorce must be filed in the county where either you or your spouse lives (This is the Venue requirement). A Petition for Dissolution of Marriage (the Pleading) must be filed by you with a Court which meets the requirements of the Illinois Divorce Act.
After the Petition for Dissolution is filed, the filing fees are paid, and service is affected, any contested issues must be resolved. These issues often involve property division, child custody, child support, and maintenance. Resolving contested issues can take time and usually involves discovery (fact finding). In some cases, Temporary Relief from the Court may be needed for matters that can’t wait for the divorce to be finalized (such as Child Custody or Maintenance matters).
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