Divorce Laws in Illinois

Divorce Laws in Illinois: A Beginner’s Guide

A marriage can end through an annulment or a divorce in Illinois. By law, legal separations are also allowed. Technically, a divorce is known as a dissolution of marriage in the state, but the terms are used interchangeably all the time.

As of January 2016, irreconcilable differences is only reason that can be cited for divorce in the state. Prior to this, the state allowed for fault-based divorces that included adultery, abuse and other similar reasons. The no-fault grounds must show that the irreconcilable differences have caused an irretrievable breakdown of the marriage and that attempts at reconciliation have failed.

Because Illinois is an equitable distribution state, courts will attempt to distribute assets in a divorce in a fair and equitable way, but not necessarily with a 50-50 split. There are several factors governing the division of assets that can impact the final outcome in many possible ways.

Here are some of the important legal questions and major issues that are common to most dissolutions of marriage in the state:

• Property Issues
• Support Issues
• Custody and Visitation
• Process
• Other Issues

Property Issues

Marital Property and Division of Assets in Illinois

Illinois is an equitable division state as such, courts will divide property on what they consider to be fair. But equitable does not mean a 50-50 split. It means that the courts will divide property based on a number of factors. Since Illinois is strictly a no-fault state, any marital misconduct is no longer considered a factor when the courts approve a final division.

In addition, non-marital property is awarded only to the spouse who owns it.

According to Illinois Compiled Statutes, there are 12 factors that are considered in property division in Illinois:

1. Each party’s contribution. Basically, the person who brought in the most income during the marriage should leave with the most assets when a marriage ends. And if a spouse racks up a lot of debt during the marriage, then they should expect to leave the marriage with a lot of the debt as well. One thing that can affect this is what is known as the “homemaker contribution” which places a significant value on the value a stay-at-home spouse adds in value to the marriage.
2. Dissipation by each party. If a spouse wastes or hides assets, this can work against them in a division of assets.
3. Value of property assigned. If one spouse has significant non-marital assets the court may, at their discretion, assign a disproportionate share of marital assets to the other. This also holds true when assigning debts as well.
4. Duration of the marriage. In long marriages this works in favor of the homemaker contribution. In short marriages, it protects gold-diggers who only marry to seek out a spouse’s wealth.
5. Relevant economic circumstances. Courts also consider the economic circumstances of each spouse. If one has a robust career and the other is a homemaker, the courts may assign more property to the less financially secure spouse. Courts also take into consideration the liquidity of assets and when streams of income may become accessible. Courts will also place a premium on children in the marriage and will make every attempt to keep them in the marital residence, same schools, churches, etc.
6. Prior marriages. Courts must also consider if there are any financial burdens from previous marriages such as child support or alimony payments.
7. Agreements. Are there any pre- or post-nuptial agreements in place?
8. Situational status. Courts must consider the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties when dividing assets and liabilities.
9. Custody. Provisions must be made for any children, including the costs to be borne by each parent in raising the children.
10. Maintenance. Courts may include alimony or child support as part of a settlement in addition to a division of assets.
11. Future income. The courts must consider the reasonable opportunity of each spouse for future acquisition of capital assets and income. Both spouses may work but one may have also put their career on hold to take care of children, disrupting their ability to earn the same income stream as the other spouse in their lifetime.
12. Taxes. Illinois laws states that a court must consider the tax consequences of a division of assets in a divorce.

Read: Who Gets the House in a Divorce?

Debts

In Illinois, any debt acquired during a marriage as the responsibility of both parties, even if it is only one party that was responsible for accruing the debt.

When it comes to splitting payment of the debt in a divorce, the debt will be split fairly but not necessarily 50-50. Courts may take into account who was responsible for accumulating most of the debt, the ability of one party to pay a debt more readily, and other factors.

It is important to remember that even though one spouse may be assigned the debt, if a spouse can’t make payments or refuses to pay, the nonpayment of the debt will affect both spouse’s credit scores. When nonpayment becomes an issue, a spouse can request that the payments be enforced by seeking relief in court.

Gifts

When one spouse receives a gift, it is presumed to be a non-marital asset in Illinois. This can include presents from outside the marriage for birthdays, retirement, holidays or any other occasion. These types of gifts are not factored in when discussing a division of property.

To overcome this, a spouse must present clear and compelling evidence that a gift was intended for both spouses as a couple.

Inherited Property

Illinois laws state that property clearly inherited by one spouse during a marriage is separate and not subject to marital property rules.

But separate ownership of inherited property can be invalidated if the person who inherited the asset commingles it with marital assets. For example, if inherited monetary assets that are placed in a joint bank account could cause the inheritor to lose their sole interest.

Also, if a person inherits a home but it is refinanced in both spouse’s names and both spouses move into the home, it could be considered community property.

It is smart keep inherited assets separate in there is even a remote possibility of divorce in the future. One other way to protect an inheritance is to have a spouse sign a postnuptial agreement whereby he or she agrees that the inheritance is one spouses, no matter how it is used in the marriage.

Pensions, IRAs, 401Ks and Retirement Plans

In Illinois, pensions and retirement accounts are considered marital property and subject to equitable distribution laws.

Determining the exact value of pensions and retirement accounts can be a complex process, and many times an expert such as an accountant, business appraiser, pension valuator, actuary, or a certified divorce financial analyst is retained to make an accurate assessment.

Legally splitting pensions and other retirement funds is a multiple step process. After the dissolution of marriage has been granted, an attorney or a specialized firm must create a qualified domestic relations order, more commonly referred to as a QDRO.

The QDRO must be approved by the courts and then it can be submitted to the plan administrator who must also approve it. This establishes that a spouse can be considered an alternate payee, and the retirement vehicle is then divided according to the specifics contained in the QDRO.

Separate Property

In Illinois, most property accumulated during the marriage belongs to both spouses and is considered marital property. To be considered non-marital property, a spouse must present clear and compelling evidence that the property is separate.

There are several instances where property can be considered non-marital in Illinois:

• Property acquired before the marriage, including debts which are considered “negative assets” by the courts.
• Property received as a gift or an inheritance
• Property acquired in exchange for non-marital property
• Property acquired after the execution of a legal separation
• Property excluded by an agreement such as a pre-nuptial or post-nuptial agreement
• Property acquired through a valid judgment against the other spouse
• Property acquired through a loan collateralized by non-marital property
• Income from non-marital property or an increase in the value of non-marital property

There are exceptions to these rules and it is best to consult an attorney if you are not sure of the status of your asset or your situation.

Support Issues

Alimony (aka Spousal Maintenance) in Illinois

Spousal maintenance can be granted on a temporary or a permanent basis in Illinois. The amount and duration are decided on an individual basis and are based on the circumstances that are unique to each divorce.

Courts use a calculator to determine a baseline amount of spousal maintenance, but the actual amount can be adjusted up or down based on several factors, including:

• The length of the marriage
• The present and future earning capacity of each spouse, including if a spouse’s ability to earn an income has been impacted by being a stay-at-home caretaker for the family which caused an impact in their education, training or employment
• The needs and standard of living of each spouse
• Age, physical and emotional health of both spouses
• Existing debts and assets
• Child custody arrangements and whether or not the primary care spouse can hold a job while taking care of the children
• Did one spouse help the other with education, career training or other ways to assist them in advancing their career
• Tax consequences due the division of assets for each spouse
• Any agreements that are in place between the spouses

Temporary support may be granted during the dissolution process but before a final decree has been issued. Short-term support may be granted to allow a spouse to regain skills or undergo training that will allow them to enter the workforce. Long-term or permanent alimony is granted in cases where a spouse has significant and ongoing needs which can be the case in long-term marriages.

Learn More: Pendente Lite: A Complete Guide to Temporary Orders

Child Support in Illinois

Child support in Illinois is based on statutes and the amount of support is based on a percentage of net income by one or both parents. The amount of the percentage is based on the number of children who will be receiving support.

Deviations from the official amount can take place depending on the financial resources and needs of the child, the physical, emotional and educational needs of the child, and the standard of living and the financial resources and obligations of both parents.

To calculate the amount of child support obligation, you can use this worksheet.

For a full explanation of the guidelines used to calculate child support, you can access the Illinois statutes covering this matter here.

In addition to paying monthly child support, both parents will be responsible for other expenses such as healthcare, childcare, education and other related expenses that may not take place every month. Adjustments can be made up or down depending on these costs as well.

When a child turns 18 in Illinois, they are considered emancipated and no longer require their parents’ financial support. But support does not automatically end at age 18. A parent must initiate the process to end support.

Child support in Illinois can continue after the age of 18 if the child is still attending high school. In this case, support can continue until age 19 at which point support obligations are terminated, unless a different agreement is in place. The exception to this is if the child is mentally diminished, in which case support payments may be ordered and extended depending on the individual situation.

Custody and Visitation

Child Custody in Illinois

Just as it is virtually all other states, custody and visitation issues are guided by Illinois statutes and the principle that all decisions will be made with the best interests of the child in mind.

According to Illinois statutes, the best interests of the child will be determined using the following factors:

• The wishes of the child
• The child’s adjustment to home, school and community
• The mental and physical health of all individuals who are involved
• The ability of the parents to cooperate to make decisions and if the level of conflict between the parents will impede their ability to make decisions regarding the child
• The level of each parent’s involvement in past significant decisions regarding the child
• Any prior agreements that were put in place related to making decisions about the child
• The wishes of the parents
• The child’s needs
• The distance between the parents’ residences, transportation issues and daily schedules that might be impacted
• If there were any restrictions on making decisions due to any parental conduct that was dangerous or immoral
• The willingness of each parent to foster a close and continuing relationship between the other parent and the child
• Any physical violence or threats of physical violence by the parent against the child
• Any instances of abuse against the child or any other member of the household
• Whether one of the parents is a sex offender or not
• Any other factor that the court may find relevant

Courts encourage parents to come up with a joint parenting agreement in cases where there are no significant negative factors (i.e. drug abuse, domestic violence, criminal activity). The plan outlines the rights and responsibilities of each parent in a very detailed fashion.

By law, parents have 120 days for file a parenting plan with the court from the date papers are first served on the Respondent. In some cases, an extension may be granted to allow for additional mediation.

When parents cannot agree on these things, the court will step in and will make the final decision after evaluating the situation.

Illinois courts prefer to grant joint legal custody. Legal custody means that a parent has the right to make important decisions about how the child is raised and cared for, including religious upbringing, medical care and other similar issues. In granting joint legal custody, both parents make these kinds of decisions for the child together.

If the judge grants sole legal custody to one parent, then that parent is the only one responsible for making important life decisions for the child. In cases where there is more than one child, it is usually considered in the best interests of the siblings that they be kept together as much as possible, but certain exceptions may apply.

Physical custody must also be determined. This defines which parent the child lives with and during what periods. It dictates who is responsible for the day-to-day physical care and supervision of a child. A judge may choose to grant joint physical custody in which case the child will live with each parent an equal amount of time.

Illinois recognizes the right for grandparents, great-grandparents, or a sibling of a minor child to petition for visitation rights as well. Certain conditions must exist such as if a parent is deceased or has been missing for at least three months, the parent is legally incompetent, a parent has been in jail for at least three months, or the child has been born out of wedlock and meets other certain conditions.

Substance Abuse

Because Illinois law changed in 2016 to strictly no-fault based divorces, substance abuse is no longer cited as a reason for divorce.

Where substance abuse carries more weight is in discussions regarding child custody. A court will not allow a parent to take custody of a child if there is a danger to the child, as there would be with drug or alcohol abuse being present. Courts will always take the best interests of the child into primary consideration and this type of problem represents a clear and present threat to the well-being of the child.

The key to getting a more favorable settlement in this instance is to document the substance abuse and how it has impacted the marriage. This can be done by testing, testimony from family members or from representatives of social services agencies, or other witnesses who can provide first-hand information and insights.

Process

Bifurcation of marital status

Bifurcation means that both parties in a divorce can legally divide their divorce into two stages. The first part satisfies the grounds for the divorce and the second part addresses the financial aspects of the divorce such as child custody, visitation, child support, alimony or other contentious issues that may have stalled or become major sticking points that are keeping the divorce from being finalized.

Illinois allows bifurcation under statute 750 ILCS 401(b). The circumstances for bifurcation are narrowly drawn under this statute and while it is allowed there are some disadvantages to bifurcation.

Keep in mind that courts do not like the fact that bifurcation creates judicial inefficiency, meaning that a divorce will actually have to go through two hearings instead of one. Couples will need to understand that they could rack up more legal bills by going through two hearings instead of one as well. Bifurcation also removes some of the incentives to settle outstanding and contentious issues which can be a powerful motivation to seek and resolve settlement.

Disclosing Assets

As part of the divorce process in Illinois, each spouse must disclose to the other the amount and type of assets they have so that there can be an equitable division of those assets as part of the final divorce decree. Accurate and complete disclosures are essential to making sure there is a fair division of assets.

In addition, financial disclosures are also used to gauge the financial health of each spouse and will help to determine if spousal maintenance is required and what amount of child support should be awarded.

In 2016, the state passed a law that standardized a Financial Disclosure Statement to be used in all divorces. Prior to that time, the disclosure statement would vary from county to county.

To get a copy of the financial form, go here.

If a spouse lies on a financial disclosure document, then they may be liable for both criminal and civil penalties. The amount of those penalties will depend on the extent and severity of the falsified information.

Learn More: How to Find Hidden Assets in a Divorce

Spouse’s Default

When a petitioner files for divorce in Illinois, they must make sure that the other spouse is served with the paperwork. After the spouse has been served, they have a limited amount of time of 30 days to respond to the action. If they don’t comply within the allotted timeframe, then a judge may enter a default judgment after a default hearing has been conducted.

When a spouse does not respond, they forfeit their right to contest any terms of the divorce, including important issues such as child custody, support, alimony and a division of assets and debts. Failure to respond could have serious implications because one spouse could get stuck paying more than they should for support or for debts that were not theirs

In some cases, it may be possible to seek an extension, such as if there is a health emergency, there was a family emergency, or a respondent was on active military duty. If it has been less than 30 days since the default judgment, a respondent can file a motion to vacate the judgment, but a person will need to supply additional proof beyond just filing an affidavit.

Other Issues

Domestic Violence

In divorces where domestic violence is present, any divorce actions are secondary to the immediate safety of a spouse or children who may be in immediate danger.

Domestic violence can include any kind of physical abuse, emotional abuse, stalking, or any other kind of harassment including those made through phone calls, mail, or social media inflicted on one spouse by the other.

Law enforcement has strong safeguards against domestic violence and when it is present in a marriage, the first goal is for a spouse to take steps to make sure they are safe above all else. This means the first thing a spouse must do is leave the residence where the abuser is living and if the threat is imminent, call the police. You can as the court for a civil order of protection to legally keep a spouse away from you either before a divorce action begins or during a divorce already in progress. These orders can last up to five years, if needed.

Under the Illinois Domestic Violence Act, domestic violence is considered a criminal offense. An abuser can be charged criminally for violating the law, and also for breaching an order of protection.

Domestic violence is a more important issue when dealing with child custody. If domestic violence can be documented, then the abuser may not be allowed any custody privileges, because courts always put the best interests of children first when it comes to all issues in a divorce. In other cases, visitation may be granted, but under strict supervision and on a limited basis.

Health Insurance

Illinois law dictates that one spouse cannot remove another from their health insurance policy before a divorce is finalized

In Illinois, after a dissolution of marriage is granted, the vast majority of employers dictate that a spouse may no longer remain on the other’s health insurance plan and they must seek out their own healthcare coverage. As part of a settlement, a judge may order one spouse to pay for the other’s health insurance.

An ex-spouse can apply for COBRA benefits. This is a law that protects people from losing health coverage during major life transitions. It allows you to continue with your spouse’s current coverage for up to 36 months as long as you pay the premiums.

Infidelity and Adultery

Infidelity and adultery occur when a spouse has sex voluntarily with someone other than their spouse while they are still married.

Because Illinois is strictly a no-fault divorce state as of January 1, 2016, couples are not able to specifically cite infidelity or adultery as a reason any longer. A couple can get a divorce for no other reason than by claiming that there is an irretrievable breakdown in the marriage. An irretrievable breakdown means that the marriage cannot be repaired or salvaged.

Infidelity or adultery may become more of an issue in things such as child custody or in a division of assets. The court places a primary concern on the well-being of children in a marriage and if it can be shown that adultery has created a negative environment, then custody may be affected to some degree.

If it can be shown that an adulterous spouse spent considerable marital assets on an affair, then this may also have some impact in certain cases when it comes to a division of assets.

Military Divorces in Illinois

If you or your spouse are a member of the U.S. armed forces and you are seeking a divorce in Illinois, your or your spouse must live in Illinois or be stationed in Illinois.

Just as in a civilian divorce, once paperwork has been filed in Illinois to begin a divorce, copies must be served on a spouse to give him or her a chance to respond. However, when that spouse is in the military, they have certain protections afforded to them by the Servicemembers Civil Relief Act. This allows them to postpone the divorce while they are overseas or otherwise not able to adequately respond to the petition due to military service commitments.

The Servicemembers Civil Relief Act eases many legal and financial burdens of military personnel and their families who face the added challenges of active duty. A service member may choose to waive delaying the divorce by signing off on paperwork which will then allow the divorce to proceed uncontested.

Normal property division laws apply for a military divorce in Illinois, but the federal government also protects military personnel through the Uniformed Services Former Spouses Protection Act that governs how military benefits are calculated when a divorce takes place. Federal laws will not allow a military members retirement to be distributed to a spouse unless the couple has been married for 10 years or more while the service member was on active duty.

Child support and spousal support are determined by Illinois state guidelines, but federal law dictates that child and spousal support awards may not exceed 60% of a servicemember’s pay and allowances.

Looking for more advice about divorce? Here are a few of our favorite resources:

• 101 Financial Pitfalls of Divorce
• What is a Certified Divorce Financial Analyst? (and why you need one)
• How to Protect and Rebuild Your Credit in a Divorce
• How to Value the House and Split Home Equity in a Divorce