7 Things You Should Know About Illinois Divorce Law

It may seem like you need to be a lawyer to understand divorce law, but it is not that complicated. While there are a lot of intricacies and legal minutia, there are some basics that you should try to understand, especially if you are considering a divorce yourself. It is not a fun process to be a part of, but if you know more about it, you can better navigate the complexities that come with it and protect your interests. Read on to learn more about Illinois divorce law.

There Are Specific Grounds for Divorce

There are states where you don't need fault grounds for a divorce. These are no-fault states where you can file on the ground of insupportability, meaning a conflict between parties. You can attempt to mediate these sorts of disputes, but often there are irreconcilable differences, meaning there is no reasonable expectation of reconciliation. In these circumstances, a spouse does not need to prove the other spouse did anything wrong to get a divorce.

Illinois is not one of these states, meaning a spouse needs fault-based grounds for a divorce. There are various types of grounds, so don't feel you are stuck in a marriage since you are not in a no-fault state. Some of the common legal grounds for ending a marriage are:

• Adultery
• Felony convictions
• Abandonment
• Extreme mental and physical abuse
• Gross habits due to excessive drug use over two years
• Habitual drunkenness
• Impotence

These are only a few grounds for divorce, but there is one exception to these grounds in Illinois. There is a no-fault exception when a couple has lived separately for more than two years and reconciliation attempts have failed. It is similar to irreconcilable differences in divorce, as the couple has shown that there have been attempts at reconciliation but they were unable to work things out.

While Illinois is a fault-based state, couples can still seek annulments, though they are incredibly rare. Couples may only qualify for annulments in specific situations such as being tricked into the marriage or if the marriage was not legal in the first case. For example, a marriage would not be legal when the two parties are related to each other, one is underage, or one party is already married.

You Can’t Have the Same Lawyer as Your Spouse

This aspect of divorce law seems like an unwritten rule, but it is not allowed by law. It makes sense, as your representative advocates for you, and if they represent your spouse, they cannot do either job well. They will be stuck trying to support both parties and won't be doing their legal duty by fully advocating for either.

Fault Does Not Generally Affect Division

For many, divorce comes at the end of a difficult relationship, but there is a mutual agreement and understanding. For others, divorce comes after lies, betrayal, abuse, and cheating. While these instances are more extreme than others, and you could direct more fault at one party, this does not mean the divorce will go in your favor. Even if a spouse had an affair that ended the marriage, the judge will likely not consider this when deciding upon property division or child custody. Extreme considerations like abandonment and abuse can affect these rulings but they only affect concerns such as visitation and parental rights.

Not All Property Is Created Equally

Courts and judges work to divide property equally in a divorce, but there is a lot to consider. First, the marital property belongs to both spouses, and then there is separate property that belongs to only one. This separate property is typically property from before the marriage, but there is more that complicates this. For example, one could have inheritance money passed down to them before marriage, making it separate property, but if they deposit it into a joint account, it becomes marital property.

There are additional considerations that courts need to make regarding physical property, such as a home. Judges weigh certain factors such as custody, living situations, property value, etc. The judges also try to divide fairly instead of equally, meaning it will not be an even 50/50 division. Certain factors are weighted, such as:

• Each party's financial resources
• The length of the marriage
• Each spouse's contribution to the value of marital property

The courts try their best to account for every factor in the divorce.

There Is Not a Bias Against Fathers or Mothers

Years of media representing divorce has created a distorted narrative that in custody agreements, courts favor mothers, rarely giving fathers custody. While statistics point to women obtaining custody more often than their spouses, this does not mean that there is a bias. Part of the reason that more mothers are awarded custody is because not many fathers fight for it. Courts deliberate over cases such as these without bias and figure out the best situation for the child.

The Child Does Not Get a Say

Another thing that media has somewhat skewed in divorce settlements is that the child will go on the stand and say who they want to go with. More often, the child does not get a say in the matter. Typically, an agreement between the parents determines custody, and the judge will intervene if the parents cannot agree. When the child is a teenager, the court could ask for their opinion on the matter, but the judge is still ultimately the decision-maker in these instances and can ignore the child.

The Court Is Secondary

Often, the court is necessary for deciding how to split assets and custody in a divorce. This is because couples cannot come to terms by themselves, and court intervention is necessary. However, this does not have to be the case. You and your spouse can end your divorce with a marriage settlement agreement, where you two agree on spousal support, property, custody, etc. These agreements need to be approved by a judge, but it shows that the court system, litigation, and attorneys can come secondary to you and your spouse agreeing on how to end things.

These are seven things you should know about Illinois divorce law, and while it can seem complicated at first, you can easily simplify it. To help you through this process, consider contacting us at Schiller DuCanto & Fleck. We are some of the most experienced Chicago family attorneys and can help make this overwhelming process easier for you.