Divorce can be a complicated process. If you’re in the midst of a divorce in Illinois, there’s an added complication: new laws concerning divorce went into effect on January 1, 2022.
That means that whatever advice you may have gotten or what you thought you knew may not be all that accurate anymore.This article will fill you in on the new laws and how they might impact you as well as going over how to file and some basic information for divorce in Illinois.
New Illinois Divorce Laws as of 2022
The Illinois Marriage and Dissolution of Marriage Act that went into effect on January 1, 2022 contains a number of added provisions that, depending on your circumstances, might impact your divorce a great deal.
The new rule that went into effect that has the most broad impact concerns having the opposing party pay for a divorce attorney. Through motion to the court, one spouse can ask the court to have the other party cover the cost of an attorney. Since, as we’ll see below, Illinois is a state that seeks to distribute resources equitably — meaning as fairly as possible rather than equally — it makes sense that the court would want to ensure both sides have representation when the only thing preventing it is ready money.
The other new rules only affect divorcing spouses who have children, but they are potentially even more impactful to those individuals.
- A parent can ask the court to allow them to relocate the children’s residence during the divorce proceedings if the move would be in the best interest of the children.
- In all cases where there are allegations of abuse or neglect, a court appointed special advocate must be appointed to do an independent investigation and report all findings to the court.
So if you didn’t seek a divorce in Illinois because you were afraid you might need to relocate during the proceedings or would be unable to afford an attorney to represent you, the recent changes might mean it’s time to start the process.
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How to File for Divorce in Illinois
Illinois requires that at least one spouse has lived in the state prior to filing for divorce or prior to the issuance of the divorce decree. The state also requires that you have been separated for a minimum of six months, however you can be “separated” in the same home or you can agree to waive this requirement.
To commence the divorce you must file a petition for dissolution of marriage with the court in your county.The rates to file will vary from county to county, but the initial filing in Cook County, for example, costs $388 in 2022. There will be other fees for having your spouse served and for their response.
You’ll have to cite the grounds for your divorce, but as of 2016, Illinois only allows one ground for divorce: irretrievable breakdown of the marriage. This change to the law ended fault-based divorce in Illinois.
Once filing is done, you and your spouse — along with your attorneys if necessary — will be encouraged by the court to work out all issues before a trial is needed. The vast majority of Illinois divorces resolve without a trial, though that may mean rounds of mediation and negotiation with attorneys and even the judge’s input.
Different Kinds of Illinois Divorce
Nearly all divorces in Illinois follow the procedures outlined above.
Divorce in Illinois can be bifurcated in certain rare circumstances. A bifurcated divorce is when the court allows the process to be split into two parts. The first part, the legal dissolution of the marriage, occurs while the second part, the division of assets and resolution of financial issues, waits until a later time.
Illinois allows bifurcated divorce only in extreme circumstances, however. One recent example involved a man who had been living with a girlfriend and who had not been living as a husband to his wife for seven years. He learned he was terminally ill and asked for a bifurcated divorce so he could marry his girlfriend and for estate planning purposes.
The court granted the bifurcation and proceeded with the legal end of the marriage. The man married his girlfriend four days later and then died a month after that. His wife appealed the bifurcation and the appeal was heard. Ultimately the bifurcation was upheld, but the fact that the appeal — in this extreme circumstance — was even heard illustrates how rare and extraordinary a bifurcated divorce in Illinois is.
How Is Property Divided in Illinois?
Illinois is an equitable division state. This means that the court will first identify all marital property and then divide it in a way that it deems most fair. Fair does not, in many cases, mean equal though.
A stay-at-home parent, for example, may have much less earning power and ability to support themselves than a parent who was a primary breadwinner. Dividing their assets equally would be unfair to the first parent, whose caregiving and homemaking work certainly benefited the other parent and left the first at a disadvantage.
In that circumstance, a court might award the majority of the assets to the first parent and even order the other to pay spousal maintenance.
Spousal Maintenance (Alimony) in Illinois
Illinois no longer uses the term alimony. Though still commonly used to refer to the concept of one spouse paying another after the end of a marriage, “alimony” is often associated with notions of marriage that have been largely left in the past.
Spousal maintenance in Illinois follows a formula based on the combined income of the divorcing couple. The basic formula is (33% of payer’s income) – (25% of recipient’s income) = spousal maintenance.
This may be adjusted depending on any child support obligations, and there is a rule that the recipient cannot receive maintenance if it would cause them to earn more than 40% of the combined income.
This maintenance is paid for a period of time based on the length of the marriage. The number of years is multiplied by a percentage, and that percentage increases as the length of marriage goes up.
So, for example, a marriage of less than five years results in support for 20% of the marriage, while a marriage of nine years results in support for 40% of the marriage or over three and a half years. Marriages that last 20 years or more will result in either maintenance for the same length as the marriage or permanent maintenance.
Child Support in Illinois
Illinois child support uses an income-share model based on the number of overnights each parent has with the children as well as any other children from other relationships. Illinois requires all parents to support their children, which means someone with children with different partners owes support to all of them.
You can use the Illinois Department of Healthcare and Family Services calculator to estimate child support.
Illinois Custody and Visitation
In Illinois, custody is referred to as parental time and responsibility. Parents are required by Illinois law to attend classes about the effects of divorce on children. If the parents cannot agree on a parenting plan, they are required to attend mediation.
The standard for the decisions the court reaches — if the parents ultimately can’t agree — will be what is in the best interest of the child. This determination is based on a number of considerations including:
- The parents’ and child’s wishes about custody
- The amount of time each parent spent on caregiving
- Prior agreements between the parents about caregiving
- The child’s relationship with the parents, siblings and any other important people in their life
- The child’s adjustment to home, school and community
- The parents’ and child’s mental and physical health
- The childs’ needs
- The distance between the parents’ home, the transportation involved and the impact of this on schedules
- Domestic abuse or threats of in the home
- The willingness of the parents to put the child’s needs above their own and to facilitate the child’s relationship with the other parent
- Whether a parent is a convicted sex offender or lives with one
- If a parent is in the military, the terms of their military family-care plan for deployment
- Any other relevant factor
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Frequently Asked Questions About Divorce in Illinois
How long does an Illinois divorce take?
Because there are no residency requirements in Illinois to file, you can move to the state and file your divorce that same day. If you do that, however, you’ll have to wait until you’ve been a resident for at least 90 days before your divorce can be made final.
If you’re already a resident of Illinois, a simple divorce can take less than two months from start to finish — if you and your spouse agree on everything. Most divorces take between two to 12 months on average.
Do you have to live separately to get a divorce in Illinois?
Illinois courts require that you and your spouse live separately and apart for at least six months before filing. This doesn’t actually mean you have to live in separate buildings, however. And, in fact, if both parties agree, the six months requirement can be waived.
What is non-marital property in Illinois?
Illinois considers most property that was acquired during the marriage except through inheritance or as a gift as marital property. Any property that one spouse owned before the marriage is also not considered marital property.
Note, however, that anything in those categories can become marital property if the owning spouse converts them to be marital property
For example, if you owned a house before the marriage and rented it out during the marriage, managing all of it yourself, the house and all value it gained would be non-marital. Similarly, an inheritance of $10,000 kept in a single bank account would remain non-marital property, but depositing it into an account shared with a spouse would make it marital property.
