Divorce in Illinois | How to Get a Divorce & Process (Guide) 2023

A divorce, often referred to as dissolution under Illinois law is the procedure used to dissolve a couple’s marriage. The parties’ agreement on child custody arrangements, parenting time schedules, support payments, and property/debt division is contained in the divorce decision. After a trial, a judge renders these decisions if the parties are unable to reach an agreement.

Divorce is never an easy process. But before delving too further into the proceedings, it’s critical to understand Illinois’ divorce rules if you reside there. Even to begin the divorce process, one must first meet certain eligibility requirements.

Most of the time, you would require a felony conviction or adultery as grounds for divorce. Additionally, Illinois courts split marital assets fairly. However, an even divide is not necessarily implied by this.

Although going through a divorce can be extremely difficult emotionally, it doesn’t have to be expensive financially. This article will explain how to apply for divorce in Illinois in all conceivable circumstances, giving you more knowledge so you may make informed decisions.

How to File for Divorce in Illinois

Uncontested and disputed divorces are the two main categories. When the spouses reach an agreement on all relationship breakdown issues, including property division, child custody and child support, and alimony, the separation is deemed to be uncontested (spousal support). Contrarily, in a contested divorce, the parties must seek the court to resolve the issues because they disagree on at least one point.

Since there is no arguing in court, uncontested divorces typically end quicker and cost less than contentious divorces. Rather, the court actually needs to evaluate, sanction, and issue a divorce decree after having approved the parties’ marital legal settlement.

You must submit your divorce papers to the Illinois circuit court where you or your spouse resides if you want to receive a divorce in Illinois.

Illinois courts can begin handling divorce cases as soon as the non-filing spouse’s deadline for replying to the petition has passed, unlike some states that mandate a “waiting period” before they can start processing your divorce (usually 30 days)

Residency Requirements for Divorce in Illinois

You can get married in any state, even if you don’t reside there, as long as you abide by the requirements for the state’s marriage license. However, there are more rigorous standards for dissolving a marriage. However, before you can apply for divorce in a state’s courts, you must satisfy the citizenship criteria of that state.

At least one partner must have resided in Illinois for at least 90 days prior to filing for divorce.

State residency laws are intended to stop one partner from relocating to some other state in order to “shop” for a judge or court that will evaluate their case more favorably. Furthermore, due to residency laws, a spouse cannot file in a different state from the other in an effort to make it more difficult (and costly) for the other spouse to reply and participate.

Also, read: Grandparent’s rights in Illinois.

Grounds Of Divorce In Illinois

Other than in one instance, a spouse in Illinois needs fault-based grounds for divorce. Thus, a spouse would require a special justification to dissolve a marriage. Below is a list of some prevalent legal bases:

• impotence both during and after the marriage;
• Bigamy;
• adultery when the marriage has ended;
• a year of willful absence or desertion;
• habitual drinking during a two-year period;
• gross customs brought on by two years of severe drug use;
• attempt on the life of the other spouse;
• extreme and ongoing brutality on the body or mind;
• Having committed a felony or another notorious offense;
• the other partner contracting a sexually transmitted illness;
• The judge decided that efforts at reconciliation have failed or that further efforts to try at reconciliation would’ve been impracticable and not in the best interests of the family because the parties have continued to live separately and apart for a continuous period of more than two years and because unresolved issues have resulted in the irretrievable breakdown of the marriage;
• Both parties agree to accept the two-year minimum if the parties had lived separately and apart for a continuous period of at least six months prior to the entry of the decision terminating the marriage.

However, there is one “no-fault” exemption allowed by Illinois’s divorce statutes. Generally, if a couple has been living apart for at least two years and attempts to reconcile have failed, or if doing so would be detrimental to the family, one partner may file for divorce. The couple may bypass the two-year requirement with a written agreement if they were divorced for at least six months before doing so.

Divorce Filing Fees in Illinois

You must spend court filing costs to start a divorce, as with most legal actions. In order to learn the filing costs in the county where you will file, you must get in touch with the circuit clerk. For instance, in Lake County, the filing fee for a dissolution of marriage as of 2021 is $334.

You can ask the court to waive the filing fees if you are unable to pay them. By submitting an Application for Waiver of Court Fees, you can ask for a fee waiver. You can prepare a fee waiver using the online tool provided by Illinois Legal Aid Online. If the judge grants your application to waive fees, you won’t be required to pay any court costs throughout the divorce, such as filing fees or fees for the serving process.

Serving Your Spouse in Illinois

You must inform your partner of the divorce as soon as the paperwork is filed. In Illinois, there are two ways to notify your partner of the impending divorce:

Service of Summons and Petition

You can pay the sheriff of the county where your spouse resides to deliver the divorce papers to them. When you submit your divorce petition, you must pay the clerk the sheriff’s fees (or, if you have a fee waiver, you won’t have to pay for service within Illinois). Your partner may be served personally or through the mail by the sheriff. If the sheriff personally serves your spouse, he or she may send you the proof of service (in which case you must submit it with the clerk) or file it with the court.

Entry of Appearance

An Entry of Appearance form must be filled out and submitted in order for our spouse to consent to forego serving.

How to Split Up Assets During a Divorce in Illinois

Financial assets like brokerage accounts, together with other investments, and tangible properties like a house, fall under the purview of property under Illinois’ divorce rules. However, the judge must first decide which group the property belongs to before the judge can proceed with dividing it up. Both partners are entitled to marital property. Separate property is a person’s property.

In essence, marital property is defined by Illinois divorce rules as anything acquired or made during the marriage. Before getting married, each spouse’s individual possessions and earnings are considered separate property. This includes monetary gifts or inheritances given from a single person to each spouse separately.

Separated property, though, can become marital property. For instance, when one spouse places inheritance funds in a joint bank account with both couples’ names, the funds are considered marital property.

However, the judge begins dividing up marital property when the court makes a distinction between marital and private possessions.

According to Illinois divorce laws, a court will divide physical property and marital assets according to the principles of equitable distribution. This implies that the court will divide property equally. Remember that this does not imply a simple 50/50 split depending on the value of the assets and property. The judge will instead consider other criteria. Following are a few examples:

• contributions made by each partner to the rise or fall in the value of the marital property
• duration of the union
• both parties’ financial resources

Contrary to certain states, marital misconduct will not be one of these reasons. Therefore, even if one spouse had an extramarital affair, the plaintiff would not have a larger share of the marital estate.

Property Division in Illinois

Since Illinois is an equitable division state, the court will distribute marital assets and liabilities equitably, though perhaps not evenly.

The court will first decide whether a piece of property is marital or separate property. It is up to the spouses to establish that something is not marital property because judges assume that any property obtained by either partner after the marriage is marital assets.

The court will then distribute the marital estate “in reasonable proportions.” When allocating property, judges do not take a spouse’s negative behavior into account. Instead, Illinois judges take into account the following when deciding how to divide property:

• How much does each spouse contribute to buying the property
• Whether either partner misused or wasted marital assets (“dissipation”)
• The amount of property each spouse has been given.
• How long was the marriage?
• The expected post-divorce financial condition for each spouse
• Any duties and privileges a spouse possesses from a previous union
• Any premarital or post marital contracts
• Age, health, abilities, and occupation of each spouse
• The requirements of each partner
• Ways to divide custody
• If a spouse will be granted spousal support
• The financial prospects for each spouse
• The property division’s tax repercussions.

In general, judges in Illinois have a great deal of freedom in determining how to split up assets and debts among divorced partners.

Divorce and Estate Planning in Illinois

In terms of Illinois estate planning, divorce rules say that the surviving spouse has no claim to any assets named in the deceased spouse’s will. However, this law doesn’t take effect until the divorce is legally finalized. What occurs if a partner passes away while a divorce is being filed?

In general, the intestate succession would still be entitled to the assets included in the decedent’s testament. This is why it’s crucial to update your estate planning framework and will while the divorce is still pending. Here, competent economic counselors and estate planning attorneys can be quite helpful, particularly if the divorce involves a sizable estate.

However, if an Illinois partner with children passes away intestate—that is, without a will—the deceased’s estate would be divided among the heirs. If the children were still minors at the time of the parent’s passing, this gets much more complicated. In this scenario, the bequest would be managed by a legal guardian. This typically means that the surviving ex-spouse assumes guardianship in the event of a divorce. The ex-spouse essentially inherits the entire estate if the dead spouse had no children.

Creating a revocable living trust is one approach to prevent this predicament. You create this document during your lifetime, as with any Illinois revocable trust, and it specifies what will happen to your financial assets after your passing. In most divorce instances, courts split property. Even after passing away, a spouse might still prevent an ex-spouse from accessing what is remaining in his or her share. A revocable living trust enables recipients and trust terms to be changed at any time. As a result, both partners could desire to start writing while the divorce process is ongoing.

Mediation as a Divorce Alternative

Not every divorce requires protracted legal battles. When there are outstanding difficulties, mediation may be a less acrimonious and more affordable divorce option than rushing to the courthouse to file for divorce.

Divorcing partners have the option of mediating their own disputes with a private mediator. While a divorce is underway in court, mediation attempts are required by law in some states. “Court-ordered mediation” is what this is. When parents in Illinois can’t agree on how to create a parenting plan, the courts must mandate mediation between the parties.

A skilled and impartial third party known as a “mediator” meets with both spouses during mediation. Each partner will have the chance to discuss their concerns and offer solutions during the private mediation sessions. A mediator’s role is to facilitate conversations so that the parties can settle their divorce without the need for judicial intervention, not to make these decisions in the case.

If you and your husband agree on all or some of the issues during the mediation, the mediator can draft a divorce financial settlement for you to submit to the court. You and your spouse’s outstanding disagreements will be resolved by the court. Mediation is typically significantly less expensive than going through a full divorce trial, and it can help you and your husband lay the groundwork for ongoing communication even if you can only compromise on one or two points.

Finalizing a Divorce in Illinois

The court will complete a divorce within 60 days of the last hearing (although the judge can request an extra 30 days if needed). A “judgment of dissolution of marriage” is the official ruling issued by the court during a divorce in Illinois. 

The verdict will include a clause allowing a spouse to resume using their maiden name if they so want. The spouse does not need to submit a second petition for a name change as long as this clause is in the ruling.

Contact the clerk of the court that awarded the divorce if you want a certified copy of your final divorce decree. In order to confirm the specifics of a divorce, you can get in touch with the Division of Vital Records at the Illinois Department of Public Health.

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