Divorce FAQ

Divorce Basics

• What do you need before you can file for divorce in Illinois? 
• What do I have to prove to get a divorce?
• What happens to the money, personal property and house?
• What is maintenance and how does a spouse get it?
• How is custody of my kids determined?
• How is visitation determined?
• How much do the parents have to pay in child support?
• For how long does a parent have to pay child support?
• Do I need an attorney to get a divorce?

What do you need before you can file for divorce in Illinois?

In order to file for divorce (petition for dissolution of marriage) in Illinois, either the husband or wife must be a resident of Illinois at the time the divorce action is filed. The person filing for divorce must have been a resident of Illinois for at least 90 days prior to the time the divorce action was filed.

The Husband and wife must have been "living separate and apart" for more than 2 years. However, the two year requirement can be waived if the husband and wife agree.

What do I have to prove to get a divorce?

Illinois is a no-fault state, which means a reason can be given for grounds for a divorce or no fault or reason need be stated except for the minimum requirements for a proper divorce action.

No-Fault: For no-fault grounds, the parties must establish that they meet the minimum requirements above and that there are irreconcilable differences.

Fault: Fault grounds may be based on one or more of the following:

1) Impotence;

2) The respondent had a wife or husband living at the time of the marriage;

3) Adultery;

4) Willfully desertion;

5) Habitual drunkenness for the time of 2 years;

6) Drug Addiction for the time of 2 years;

7) Extreme and repeated physical or mental cruelty;

8) Convicted of a felony or other infamous crime;

9) Spouse infected with a sexually transmitted disease.

What happens to the money, personal property and house?

There are two categories of property: Marital and Non-Marital. In Illinois, only marital property is subject to what's referred to as "equitable distribution". Equitable does not necessarily mean "equal". The courts will divide the property between the husband and wife fairly, which is determined on the basis of several factors. In the event that the husband and wife cannot reach an agreement as to the division of marital property, the courts will then determine what is considered the "marital property" and divide it equitably between the parties.

Non-marital property is not subject to division between the parties unless the non-marital property was mixed with the marital property. In other words, if the property of one spouse was purchased before the marriage and/or kept separate from the marital property, that spouse will be entitled to keep that property as his or her own. If, however, the property of one spouse is mixed with marital property during the marriage, it may be subject to division by the court. Because this issue can often become complicated, it is important that you have an attorney represent your best interest.

What is maintenance and how does a spouse get it?

Maintenance, sometimes referred to as alimony, is basically defined as financial support that one spouse provides to the other when they get divorced. The courts will determine maintenance on a case-by-case basis. There are different types of maintenance which can be awarded, depending on the circumstances of the parties. The courts will look at the financial situation of the parties, and may consider the following factors in determining the amount of maintenance, if any, required to be paid by one spouse to the other:

1. The income and property of each party.

2. The needs of each party.

3. The earning capacity of each party.

4. The impairment of earning capacity due to time spent doing domestic duties.

5. The time necessary to increase earning capacity of a party.

6. The marital standard of living.

7. The marriage duration.

8. The age and health of the parties.

9. The tax consequences of other property distribution.

10. The contributions of the party seeking maintenance to the career of other party.

11. Any valid agreement by the parties.

How is custody of my kids determined?

The most important factors the courts look to in determining custody matters is "the best interest of the child." Some factors the court may consider are the parents wishes, the child's wishes (depending on their age), the relationship between the parents and child, the child's relation to their home, school and community, where the parties live, the physical health of the parents and the child, and the ability of the parents to cooperate with each other.

Physical Custody: Physical custody may be awarded to one parent solely, or to both parents jointly. This refers to where the child lives. Oftentimes, if agreed to by the parties, the parents may enter into a shared custody agreement, whereby the child lives with one parent for a part of the week (or year) and with the other parent during the remaining portion. In order to be granted joint custody, the parents must agree to it and have the ability to cooperate with one another. If one parent is given sole custody, the child will live with that parent and the other will, more than likely, be given visitation rights.

Legal Custody: One parent may have sole legal custody or both parents may be given joint legal custody of the child. Legal custody refers to the right for a parent to make any and all decisions for the child. This may include decisions regarding education, healthcare, religion, etc.

How is visitation determined?

There are no formal guidelines in Illinois as to how visitation by the non-custodial parent is determined. The courts encourage involvement of both parents with the child. The parents may come to an agreement as to the visitation schedule, or the court may determine a visitation schedule for the non-custodial parent that is in the best interest of the child.

How much do the parents have to pay in child support?

Child support may be required to be paid by one or both parents. Illinois has standard statutory guidelines for payment of child support, which are as follows:

Depending on the circumstances, the courts may decide not to follow these guidelines. The best interest of the child always governs, and the duty is to pay child support which is "reasonable and necessary to provide for the physical and emotional needs of the child."

For how long does a parent have to pay child support?

Generally, a parent is required to pay child support until the child reaches the age of majority, at which time the child support ends. The age of majority, regarding the termination of child support, is when the child has reached the age of 18 or, if the child is in high school, when he or she has reached the age of 19.

If the child is disabled, the courts may order a parent to continue paying child support even after the child has reached the age of majority. The court may also require that one or both parents help to pay for the child's education expenses, after they have reached the age of majority, until the child has completed a bachelor's degree.

Do I need an attorney to get a divorce?

Although it is not required that you have an attorney represent you in an Illinois divorce proceeding, it is highly recommended. An attorney has the experience and knowledge on the divorce laws and procedures of Illinois, and will be able to competently represent your interest. A divorce proceeding can be a long, grueling, and emotionally draining process. Some divorce proceedings may involve property and custody issues which can become complicated and extremely overwhelming. Knowing that you have an attorney representing your best interest will give you peace of mind during this difficult process.