Illinois Divorce Law

Illinois State Divorce Law and Resources

Divorce laws are enacted and interpreted by each of the respective states. This means your state and local family law court determines such things as divorce case filing and pleading procedures, spousal and child support payments, custodial rights of parents and the division of community property. Since laws get amended and new ones get made with some frequency, consult with an experienced family lawyer in your county for the most current status of the law. The family lawyer you choose should also be knowledgeable with the local courts and jury sentiment.

RESIDENCY REQUIREMENTS:

To file for a dissolution of marriage in the state of Illinois, one of the spouses needs to be a resident of this State or stationed in this State while a member of the armed services, for 90 days preceding the commencement of the action or the making of the finding. The proceedings shall be had in circuit court of the county where the plaintiff or defendant resides. [Based on Illinois Compiled Statutes 750 – Chapter 5 – Sections: 104 and 401]

ILLINOIS GROUNDS FOR DIVORCE:

No Fault: Irretrievable breakdown of the marriage based on: living separate and apart for a continuous period of 2 years or more and the court determines that future attempts at reconciliation would be impracticable and not in the best interest of the family. A judge can limit the period of separation to 6 months in certain situations as evidenced by testimony or affidavits of the spouses.

FAULT:

Dissolution of marriage may also be granted on the following grounds: natural impotence, bigamy, adultery, desertion for the space of one year, including any period during which litigation may have pended between the spouses for dissolution of marriage or legal separation; habitual drunkenness or drug addiction for the space of two years; attempting to take the life of the other by poison or other means showing malice, or extreme and repeated physical or mental cruelty, conviction of a felony or other infamous crime; or the respondent has infected the other with a sexually transmitted disease. [Based on Illinois Compiled Statutes 750 – Chapter 5 – Section: 401]

SEPARATION:

Any person living separate and apart from his or her spouse without fault may petition for reasonable support and maintenance while they so live apart. Such action shall be brought in the circuit court of the county in which the respondent resides or in which the parties last resided together as husband and wife. Proceedings are the same as for a dissolution of marriage. A proceeding or judgment for legal separation shall not bar either party from instituting an action for dissolution of marriage, and if the party so moving has met the requirements of Section 401, a judgment for dissolution shall be granted. [Based on Illinois Compiled Statutes 750 – Chapter 5 – Section: 402]

MEDIATION OR COUNSELING REQUIREMENTS:

If the court concludes that there is a prospect of reconciliation, the court, at the request of either party, or on its own motion, may order a conciliation conference.

In an action for dissolution of marriage involving minor children, or in a post-judgment proceeding involving minor children, the court may on its own motion order the parents to attend an educational program concerning the effects of dissolution of marriage on the children, if the court finds that it would be in the best interests of the minor children. [Based on Illinois Compiled Statutes 750 – Chapter 5 – Section: 404 and 401.1]

PROPERTY DIVISION:

Illinois is an equitable distribution state, meaning that marital property shall be divided equitably, not necessarily equally. For purposes of distribution of property, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, or community property. Marital property shall be divided, without regard to marital misconduct, considering all relevant factors, including:

1. the contribution of each party to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property, including the contribution of a spouse as a homemaker or to the family unit;
2. the dissipation by each party of the marital or non-marital property;
3. the value of the property assigned to each spouse;
4. the duration of the marriage;
5. the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children;
6. any obligations and rights arising from a prior marriage of either party;
7. any antenuptial agreement of the parties;
8. the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
9. the custodial provisions for any children;
10. whether the apportionment is in lieu of or in addition to maintenance;
11. the reasonable opportunity of each spouse for future acquisition of capital assets and income; and
12. the tax consequences of the property division upon the respective economic circumstances of the parties.

“Non-marital property” is considered: (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 awarded to a spouse from the other spouse; (6) property acquired before the marriage; (7) the increase in value of property acquired by a method listed in paragraphs (1) through (6) of this subsection, 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; and (8) income from property acquired by a method listed in paragraphs (1) through (7) of this subsection if the income is not attributable to the personal effort of a spouse. [Based on Illinois Compiled Statutes 750 – Chapter 5 – Section: 503]

ALIMONY/MAINTENANCE/SPOUSAL SUPPORT:

The court may grant a temporary or permanent maintenance award for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct, in gross or for fixed or indefinite periods of time, and the maintenance may be paid from the income or property of the other spouse after consideration of all relevant factors, including:

1. the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance;
2. the needs of each party;
3. the present and future earning capacity of each party;
4. any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage;
5. the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment or is the custodian of a child making it appropriate that the custodian not seek employment;
6. the standard of living established during the marriage;
7. the duration of the marriage;
8. the age and the physical and emotional condition of both parties;
9. the tax consequences of the property division upon the respective economic circumstances of the parties;
10. contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse;
11. any valid agreement of the parties; and
12. any other factor that the court expressly finds to be just and equitable.

SPOUSE’S NAME: Upon request by a wife whose marriage is dissolved or declared invalid, the court shall order her maiden name or a former name restored. [Based on Illinois Compiled Statutes 750 – Chapter 5 – Section: 413]

CHILD CUSTODY:

The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:

1. the wishes of the child’s parent or parents as to his custody;
2. the wishes of the child as to his custodian;
3. the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interest;
4. the child’s adjustment to his home, school and community;
5. the mental and physical health of all individuals involved;
6. the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person;
7. the occurrence of ongoing or repeated abuse, whether directed against the child or directed against another person; and
8. the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
9. whether one of the parents is a sex offender.

The court may enter an order of joint custody if it determines that such an arrangement would be in the best interests of the child, taking into account the following: (1) the ability of the parents to cooperate effectively and consistently in matters that directly affect the joint parenting of the child. “Ability of the parents to cooperate” means the parents’ capacity to substantially comply with a Joint Parenting Order. The court shall not consider the inability of the parents to cooperate effectively and consistently in matters that do not directly affect the joint parenting of the child; (2) The residential circumstances of each parent; and (3) all other factors which may be relevant to the best interest of the child. Nothing within this section shall imply or presume that joint custody shall necessarily mean equal parenting time. The physical residence of the child in joint custodial situations shall be determined by: (1) express agreement of the parties; or (2) order of the court under the standards of this Section.

The term “child” shall include any child under age 18 and any child under age 19 who is still attending high school. After the age of 19, child support terminates in unless there is an agreement to extend the support. The above guidelines shall be applied in each case unless the court makes a finding that application of the guidelines would be inappropriate, after considering the best interests of the child in light of evidence including but not limited to one or more of the following relevant factors: (a) the financial resources and needs of the child; (b) the financial resources and needs of the custodial parent; (c) the standard of living the child would have enjoyed had the marriage not been dissolved; (d) the physical and emotional condition of the child, and his educational needs; and (e) the financial resources and needs of the non-custodial parent. [Based on Illinois Compiled Statutes 750 – Chapter 5 – Section: 505]

ENFORCING CHILD SUPPORT IN THE STATE OF ILLINOIS – THE FEDERAL OPTION

Federal Options Enforcement (CSE) Program is a federal/state/local effort to locate parents, their employers, and/or their assets; establish paternity if necessary; and establish and enforce child support orders. The federal role is to provide funding, issue policies, ensure that federal requirements are met, and interact with other federal agencies that help support the CSE program.

How and where do I apply?

In most states, CSE offices are listed under the human services agency in the local government section of the telephone directory. If there is not a separate listing, the human services agency information operator should be able to give you the number. State CSE agencies are listed at the end of this brochure; they also can provide telephone numbers for local offices. Call your Child Support Enforcement office to learn how to apply for enforcement services and what documents (birth certificates, financial statements, etc.) you should provide.

What are the steps to collecting support?

The first step, if a child was born out of wedlock, is to establish paternity – or make a legal determination of who fathered the child. Many men will voluntarily acknowledge paternity. Either parent can request a blood test in contested paternity cases. Your caseworker will help you to establish paternity for your child.

Establishing the obligation is the next step. The fair amount of child support that the non-custodial parent should pay is determined according to state guidelines. Your CSE office will be able to tell you how support award amounts are set in your state. Your CSE office can also request medical support for your child.

The last step is enforcement of the child support order. The CSE office can help with collecting the money due no matter where the non-custodial parent lives.

At any of these steps, the CSE office may need to know where the non-custodial parent is living or where he/she is working. When a parent has disappeared, it is usually possible for the CSE office to find him/her with the help of state agencies, such as the Department of Motor Vehicles, or the Federal Parent Locator Service. Your caseworker can tell you what information is needed to find an absent parent or his/her employer.

The most successful way to collect child support is by direct withholding from the obligated parent’s paycheck. Most child support orders require the employer to withhold the money that is ordered for child support and send it to the CSE office. Your Child Support Enforcement office can tell you about this procedure.

Federal and State Income Tax refunds may be withheld to collect unpaid child support. States also have laws, which allow them to use: liens on real and personal property; orders to withhold and deliver property; or seizure and sale of property with the proceeds applied to the support debt. Many states routinely report child support debts to credit bureaus and smart parents are bringing their payments current so that their credit won’t be affected.

For More Information write for the Handbook on Child Support Enforcement by contacting:

ACF OCSE National Reference Center

370 L’Enfant Promenade, S.W.

4th Floor Washington, DC 20447

(202) 401-9383

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