Divorce in Illinois: Grounds for Divorce and Contested vs. Uncontested Cases

Grounds for Divorce

Illinois is a no-fault divorce state. No-fault divorce means that wrongdoing by one of the parties does not need to be shown. Rather, a couple can show that “irreconcilable differences” have led to the irretrievable breakdown of the marriage and a divorce is in the best interests of the family. This is different from “fault” divorce which requires cause to be shown such as cruelty, adultery, or desertion. In recent years, more states have moved to “no-fault” divorce.

While fault does not have to be shown, there are still some requirements in order to obtain a divorce in a no-fault state. Specifically, irreconcilable differences still must be shown. There will be an irrebuttable presumption of irreconcilable differences when the parties have been living “separate and apart” in excess of six months. However, you can still get a divorce even if the six month requirement is not met, there is just not an irrefutable presumption. Living “separate and apart” does not require that you physically live apart, rather a breakdown of the marriage has occurred. This can be shown in a variety of ways, such as filing for dissolution of marriage, no longer sleeping in the same bed, ceasing couples therapy, etc. 

Divorce: Contested v. Uncontested

In Illinois, a divorce can be uncontested, or it can be contested, or somewhere in between. There is a spectrum between uncontested and contested cases and where each case falls depends on what issues and disputes between parties exist. The more agreements the parties are able to make regarding any minor children and financials, the less contested a case is. 

An uncontested case is one where both parties agree to all the terms of the divorce, or the parenting matters, including issues such as property division, maintenance, and child-related issues, such as parenting time and decision making. In these cases, the divorce can often be finalized relatively quickly and without the need for court appearances such as hearings or even trials. An allocation judgment and marital settlement agreement, in the case of divorce, or a financial order, in parentage cases, can be prepared and executed to be submitted to the judge. In divorce proceedings, once the marital settlement agreement and allocation judgment are completed, the case can be scheduled for a prove up, which will be the court date where the judge grants the divorce.

A contested case, on the other hand, is one where the parties are unable to agree on one or more issues related to the divorce or parentage case. In these cases, the case may require more court appearances. This could include pretrial conferences where the judge gives recommendations, hearings where the judge makes rulings after receiving evidence, or even a trial. The purpose of litigation is to resolve the issues and help the parties reach a resolution on the terms of the case that they cannot otherwise reach without court intervention. 

A common misconception in any proceeding, whether contested or contested, will be that certain behaviors of a party will influence the division of financial assets. For example, one party being abusive will not cause the other party to receive more of the assets from the marital estate. More commonly, people want to know how their spouse cheating impacts the division of the marital estate. Simply, an individual cheating does not matter in no-fault divorce states. There is a narrow exception to this rule if a spouse expends marital assets to further an affair, which is called “dissipation” and is detailed below.

Dissipation

Because Illinois is now a no-fault divorce state, those grounds for separation are no longer relevant in terms of the divorce and do not typically impact the division of assets. This most commonly comes up when a spouse wants an unequal share of the marital estate because their spouse cheated. However, the spouse cheating will not be enough, there must be marital assets spent towards the affair for the other spouse to have an argument for an unequal division of the marital estate or reimbursement through a dissipation argument.

In Illinois, dissipation has been defined as the "use of marital property for the sole benefit of one of the spouses for a purpose unrelated to the marriage at a time that the marriage is undergoing an irretrievable breakdown."  In re the Marriage of O'Neill, 138 Ill.2d 487, 150 Ill.Dec. 607, 563 N.E.2d 494, (1990).  This means that a court may award a greater share of the marital property to the spouse who did not dissipate assets, to compensate for the loss of the assets. For more information on dissipation and divorce, click here.

If you are considering divorce, contact The Law Office of Erin M. Wilson LLC for a consultation today at 312-767-4220.

NOTICE: This blog is intended solely for informational purposes and should not be construed as providing legal advice. Please feel free to contact us with any questions you may have regarding this blog post.