Walter Jackowiec II is an Illinois-licensed attorney. This article is provided as general information, not legal advice, and may not reflect the current laws in your state. It does not create an attorney-client relationship and is not a substitute for seeking legal counsel based on the facts of your circumstance. No reader should act based on this article without seeking legal advice from a lawyer licensed in their state.
If you’re considering getting a divorce in Illinois, you likely have a lot of questions. An experienced divorce attorney can discuss any concerns about your specific case.
In the meantime, this article answers some frequently asked questions about divorce in Illinois so you can prepare for the process (which the state calls a “dissolution of marriage”) and have some idea of what to expect.
What are the types of divorce in Illinois?
In Illinois, divorces can be classified as either uncontested or contested.
An uncontested divorce is one in which both parties agree on the terms of the divorce. Uncontested divorces typically involve couples who’ve worked out their differences and are seeking to dissolve their marriage with minimal court intervention. An uncontested divorce tends to be faster and less expensive than a contested divorce.
A contested divorce is one in which the spouses are unable to agree on the terms of the divorce. In this case, the court may need to intervene and make decisions on behalf of the couple.
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What are the residency requirements for divorce in Illinois?
In order to obtain a divorce in Illinois, at least one spouse must have been a resident of the state for a minimum of 90 days.
What are the legal grounds for divorce in Illinois?
The only grounds for divorce recognized in Illinois are irreconcilable differences.
Illinois also requires that spouses live “separate and apart” for a continuous period of at least six months before filing for divorce. This separation allows the spouses to demonstrate that there’s a breakdown in the marriage, that all attempts at reconciliation have failed and that future efforts to reconcile wouldn’t be in the best interest of the family.
Living separate and apart doesn’t necessarily mean that you and your spouse have different households. You may remain in the same home due to finances or the presence of a family member who lives with you. However, in this case the court might ask for evidence (for example, sworn testimony) to show that you have been living like roommates (that is, without marital relations).
You may be able to get divorced without the six months waiting period if both spouses mutually agree to end the marriage. In this case, the court might require the spouse seeking the divorce to swear under oath that the couple has irreconcilable differences and that there’s no chance of reconciliation.
Can I get spousal support? What factors will a judge consider?
When a couple decides to divorce in Illinois, one spouse may be entitled to receive spousal support (also known as alimony or spousal maintenance). The court takes all relevant factors into account when deciding whether to award spousal support and how much support should be awarded. Factors may include:
- The length of the marriage
- Each spouse’s contributions to the marriage
- Each spouse’s financial affidavit (which outlines income, expenses, assets and liabilities)
- The balance in each spouse’s bank accounts
How is marital property divided in Illinois?
When getting a divorce in Illinois, marital property is divided according to the principle of equitable division. This means any assets or debts acquired during the marriage are divided fairly between both parties. When deciding how to divide property, the court takes into account various factors, such as:
- Each spouse’s financial contribution to the property
- Each spouse’s earning capacity
- Each spouse’s parental responsibilities
- The length of the marriage
- Any child support
- Parenting time
To begin the division process, each spouse must submit a financial affidavit detailing all their assets and debts. The court evaluates these documents and divides the marital property and debts in an equitable manner. Assets such as bank accounts, real estate, investments and pensions are typically divided between the two parties.
How is child custody determined in Illinois?
Divorcing parents may negotiate their own terms for parenting time and custodial responsibilities, but if the parents cannot come to an agreement, the court will make the decision on their behalf. Illinois courts take a number of factors into account when deciding child custody, including:
- The child’s age and development
- The health and well being of each parent
- The child’s preference
- The parents’ ability to provide for the child’s needs
- Each parent’s financial resources, bank accounts or real estate
- The parents’ capacity to cooperate with each other
- The impact of any abuse on the child or family
Overall, the court focuses on the best interest of the children when determining child custody in an Illinois divorce. The court also considers both parents’ wishes and will take into account the relationship between each parent and child, as well as who can provide the best possible environment for the child. It’s important to note that joint custody isn’t always granted in an Illinois divorce, and the court has the ultimate decision-making power when it comes to deciding the amount of parenting time each parent will have with their children.
Illinois courts require that the parties enter into an allocation judgment that deals with primary residency, parenting time and decision making for the parties. If the parties can’t work these out, the court requires them to go to mediation. If this doesn’t work, the courts appoint a guardian ad litem (GAL), a neutral person. The GAL performs an investigation into both parents’ work schedules, the child’s involvement with each parent, their activities and school progress, and the parenting time requested by each parent. Then they make a report to the court about these issues.
How is child support determined in Illinois?
Child support in Illinois is determined based on the state’s “income shares” model, which takes both parents’ incomes into account to calculate a fair amount of child support that can be paid. When considering whether child support is warranted, as well as the amount, the courts take several factors into account, such as:
- Each parent’s income
- The number of overnights each parent has the child
Child support payments are often used to cover a child’s basic needs such as housing, food, clothing and transportation. However, some costs—such as childcare, extracurricular activities, medical care not covered by insurance and education expenses—are in addition to child support.
How to file for divorce in Illinois
As outlined below, the steps to file for divorce in Illinois differ slightly depending on if the divorce is uncontested or contested. Steps 1 and 2 are the same for both types of divorce.
1. File the paperwork
The couple must agree to separate and file paperwork that states they have irreconcilable differences. To do so, you need to fill out several forms, including a petition for dissolution of marriage, a financial affidavit, a parenting plan (if children are involved) and a marital settlement agreement.
File the complete documents with the county’s clerk of courts. You may be able to file in person or by mail, depending on your county’s requirements.
2. Serve your spouse
Then you must serve your spouse with a complaint for dissolution of marriage and a summons. There are several options for doing this:
- Physical appearance: If your spouse agrees, they can meet with you so you can hand them the summons.
- Primary server: Your attorney can secure the service of a county sheriff to serve the defendant with divorce papers. Or you may be able to use any Illinois citizen over the age of 18 who’s assigned to the defendant by a court. The chosen server should present the summons at the home of the defendant either to the defendant, a family member or another resident (who must be at least 13 years old).
- Publication of service of process: If your spouse can’t be found and you’ve made a good-faith effort to locate them, it’s possible to file an action by service by publication. Note that court approval is needed for this.
3a. Uncontested divorce: Attend a hearing to finalize your divorce
For an uncontested divorce to be finalized, the spouse who filed for the divorce must appear at the final hearing. The other spouse isn’t required to attend as long as they signed all the necessary documents. The judge at the hearing will then issue a final judgment of dissolution of marriage.
3b. Contested divorce: Attend a court trial to resolve the issues
If you’re filing for a contested divorce in Illinois, whereby you and your spouse are unable to reach an agreement on the terms of the divorce, the court will hold a trial to determine the issues in dispute.
Since a contested divorce can be a long and complex process, it’s generally a good idea to consult with an attorney to ensure that your rights are protected and to help you navigate the process. An attorney can also represent you in court and provide guidance on the potential consequences of any agreements you make.
At the end of the trial, the judge will make their relevant rulings and then issue a final judgment of dissolution of marriage.
How long will it take to get divorced in Illinois?
The amount of time it takes to get divorced in Illinois depends on whether the divorce is uncontested or contested.
Uncontested divorces can be granted relatively quickly once the filing requirements are met. If both parties agree to the terms of the divorce, a judge may grant the divorce within about 60 days of the filing date.
Contested divorces take much longer, as the parties have to go through a full hearing process. This means both parties must be served notice of the proceedings and appear in court for a hearing. All of this can add up to as long as 30 months to finalize the divorce.
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How much does divorce cost in Illinois?
The cost of divorce in Illinois varies greatly. Generally, uncontested divorces that involve minimal dispute resolution are much less expensive than contested divorces where the parties disagree on certain issues.
All divorces in Illinois require a filing fee, which currently ranges from about $200 to $500 depending on the county in which you’re filing.
If your divorce is contested and requires legal representation, it can become quite costly. Many attorneys charge anywhere from $3,000 to $10,000 for the entire process, depending on the complexity of the case.
Can we agree to a divorce settlement outside of court?
If both parties are in agreement and your settlement is deemed reasonable and legal, it’s possible to settle your divorce without the court becoming involved. When reaching a settlement, it’s important to take parental responsibilities and parenting time into account. A good settlement should include provisions for child support, health care and other matters related to parenting.
Mediation is one way to reach a divorce settlement in Illinois. It’s a voluntary and confidential process that allows divorcing spouses to attempt to resolve their issues with the help of a trained neutral third party called a mediator. Mediation can be used to work out the details of child support, parental responsibilities, child custody and visitation, property division and other important matters.
When using mediation, understand that the mediator can’t make decisions for the couple. The mediator is only there to facilitate communication between the parties and assist them in finding a mutually satisfactory resolution, taking into account both parties’ interests and needs, as well as any evidence presented, such as financial affidavits, bank accounts and real estate documents.
When to speak to a divorce attorney
Divorce is a complex legal process with many factors to consider. Even if you are in agreement with your spouse, having an attorney review your divorce agreement can ensure all of your rights are considered and protected. And if you’re filing for a contested divorce, an attorney can help make sure that your rights are protected during the process and represent you in court, increasing the likelihood that you’ll reach a final decision that suits your wishes.
