In Illinois a divorce is called a dissolution of marriage, which will always accomplish two things: (1) severing the marital relationship, and (2) dividing assets and debts. If one party will be unable to be self-supporting after the divorce, the issue of alimony may also arise. If there are minor children, they will also need to resolve issues of child custody, visitation, and support.
Residency and Where to File
In order to file for dissolution of marriage in Illinois, either you or your spouse must be a resident of Illinois for at least 90 days. You and your spouse also need to have been separated for at least two years. You may file in the Circuit Court in the county where either of you live.
The most simple procedure in Illinois is called a Joint Simplified Procedure. You and your spouse can file a Joint Petition for Simplified Dissolution of Marriage if:
- no spousal support (alimony) will be paid,
- no-fault grounds are used,
- there are no children and the wife is not pregnant,
- you have not been married more than 8 years,
- neither of you have any real property,
- the total equity in your marital property is less than $10,000,
- the combined annual income of you and your spouse is less than $35,000,
- neither of you earn more than $20,000 annually,
- you both disclosed your assets and tax returns for the years you were married, and
- you and your spouse have a written agreement dividing all of your property in excess of $100 in value, and allocating who will be responsible for each debt owed.
If you don’t meet the requirements for the Simplified procedure, but you and your spouse are in agreement on all matters, you may still file an uncontested divorce using the standard procedure. For either procedure, you would begin by preparing either a Petition for Simplified Dissolution of Marriage or a Petition for Dissolution of Marriage, along with various other supporting documents. One of these documents will be a marital settlement agreement outlining the division of assets (and your agreement regarding any children for an uncontested standard procedure). These documents are filed with the court, and copies of them are provided to your spouse. You will attend a court hearing, at which time the judge will make sure that all of your paperwork is in order, perhaps ask you a few questions, and enter your Judgment of Dissolution of Marriage.
Grounds for Divorce
Grounds for divorce are legally recognized reasons to get a divorce and sever the marital relationship. To get a no-fault divorce in Illinois you need to state in your Petition that “irreconcilable differences have caused the irretrievable breakdown of the marriage, and reconciliation has failed or further attempts at reconciliation are impractical, and the parties have been living separate and apart without cohabitation for more than 2 years.”
There are also numerous fault-based grounds for divorce, including adultery, desertion for 1 year, drug or alcohol addiction for 2 years, cruel and inhuman treatment, and conviction of a felony. However, using any of these will add complexity to the process by requiring proof.
A divorce involves dividing property and debts between you and your spouse. Generally, you will be able to keep your non-marital property, which is property:
- acquired before marriage, or by gift or inheritance, or in exchange for other non-marital property, or after a legal separation,
- excluded by a valid written agreement,
- obtained by a judgment against your spouse, and
- that represents an increase in value of, or income from, nonmarital property.
Your marital property will be divided after consideration of the following factors:
- either party’s contribution to, or dissipation of, property,
- value of separate property,
- duration of the marriage,
- economic circumstances of the parties,
- any prior marriage obligations,
- any prenuptial agreements,
- each party’s age, health, station, occupation, income, skills, employability, estate, liabilities, and needs,
- child custody provisions,
- whether property is in lieu, or in addition to, maintenance (alimony),
- each party’s opportunity for future acquisition of assets and income, and
- tax consequences.
Alimony in Illinois
Alimony is called maintenance in Illinois. The judge will first determine if maintenance is appropriate after considering the following factors:
- each party’s income, property, needs, and present and future earning capacity,
- any impairment in earning capacity due to foregoing education and employment opportunities to devote time to domestic duties,
- time needed for the party seeking maintenance to obtain education, training, and employment to become self-supporting; or whether the party should not be required to seek employment due to child custody obligations,
- standard of living established during the marriage,
- duration of the marriage,
- each party’s age, and physical and emotional condition,
- tax consequences of the property division,
- either party’s contribution to the other’s education, training, career, or license, and
- any valid agreement of the parties.
If maintenance is ordered, the amount will be calculated by subtracting 20% of the payee’s gross income from 30% of the payor’s gross income. However, the amount calculated, when added to the payee’s income, may not exceed 40% of their combined income. The duration of maintenance will be determined by the length of the marriage: For a marriage of up to 5 years, the duration will be 20% of the number of years the parties were married; 40% for 5 to 10 years; 60% for 10 to 15 years, and 80% for 15 to 20 years. If you were married for more than 20 years, the judge must order maintenance for either the number of years of the marriage or permanently.
Child Custody in Illinois
Custody is determining out how the children’s time will be divided between the parents, and how decisions will be made. If you and your spouse cannot agree on custody, Illinois child custody law requires the judge to make a decision, after considering the following factors:
- the wishes of the child and the parties,
- the relationship of the child to the parties, any siblings, or other significant persons,
- the child’s adjustment to home, school, and community,
- the mental and physical health of the parties and child,
- any physical threat to the child,
- each party’s willingness to encourage contact between the other party and the child,
- any repeated abuse or domestic violence, and whether a party is a sex offender, and
- the terms of any military family-care plan.
Child Support in Illinois
Child support is determined by reference to the Illinois child support guidelines. This basically comes down to a percentage of the paying party’s net income (20% for one child, 28% for 2, 32% for 3, 40% for 4, 45% for 5, and 50% for six or more children.
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