Illinois’ new divorce laws have significantly reformed family law, impacting various aspects of divorce, including child support, spousal maintenance, property division, and custody. Here’s a detailed look at these changes:
Key Takeaways
- The Illinois Marriage and Dissolution of Marriage Act (IDMA) has replaced the term “custody” with “allocation of parental responsibilities.” This reflects a shift toward cooperative parenting post-divorce, allowing joint decision-making on important aspects of childrearing.
- Child support calculations now use an “income sharing” model, considering both parents’ incomes to mimic the financial environment of an intact household. The model also accounts for the time a child spends with each parent.
- Maintenance calculations have shifted from gross to net income, offering a truer representation of each party’s disposable income and leading to fairer maintenance decisions.
- Illinois follows equitable distribution principles for property division, focusing on fairness rather than equality. Factors like each spouse’s contribution and the value of the property are considered.
Parental Responsibilities and Child Support:
- The Illinois Marriage and Dissolution of Marriage Act (IDMA) has eliminated the term “custody” and replaced it with “allocation of parental responsibilities.” This change signifies a shift towards a more cooperative approach to parenting after divorce. Decisions concerning education, health, religious upbringing, and extracurricular activities can now be jointly made by parents.
- Child support calculations have moved to an “income sharing” model, which considers both parents’ incomes as both incomes are available to support the child. This approach also considers the number of nights a child spends with each parent.
- The IDMA favors involvement of both parents in the child’s life and an equal parenting time if it’s in the child’s best interests, with several statutory factors taken into account to determine the best arrangement.
Spousal Maintenance (Alimony):
The reforms in Illinois’ spousal maintenance (alimony) laws aim to create a fairer and more adaptable system for divorced couples. Here’s a more detailed look:
Calculation Based on Net Income: Previously, spousal maintenance was calculated using gross income. The switch to net income offers a more accurate reflection of each party’s disposable income, leading to more equitable maintenance decisions. This change addresses the real financial capacities of individuals post-divorce, taking into account taxes and mandatory deductions.
Categories of Maintenance:
- Fixed-Term Maintenance: This type has a predetermined end date. It was formerly known as “rehabilitative maintenance” and is intended to support a spouse temporarily while they gain skills or education to become self-sufficient.
- Reviewable Maintenance: After the initial period of maintenance, the court can review and decide whether the recipient continues to need support, considering their financial independence.
- Indefinite Maintenance: Typically granted in long-term marriages (over 20 years), indefinite maintenance continues unless specific events occur, like the death or remarriage of the recipient.
- Reserved by the Court: In some cases, the court may reserve the decision to award maintenance for a future date, depending on the circumstances.
Tax Implications:
A significant change is that, for agreements or awards made after January 1, 2019, spousal maintenance payments are neither taxable income for the recipient nor a tax deduction for the payer.
Property Division:
Equitable Distribution Principles:
Fairness, Not Equality: The state does not automatically split marital assets 50-50. Instead, it seeks a fair distribution based on various factors.
Factors Considered: Key considerations include each spouse’s contribution to the marriage (financial and non-financial), the value of the property to be divided, the parties’ earning ability, health, ability to acquire property after the divorce and the length of the marriage. This nuanced approach accounts for the complexities of marital contributions, ensuring a distribution that acknowledges both tangible and intangible inputs.
Non-Marital Property:
Definition: Non-marital property includes assets acquired as gifts, inheritances, or owned prior to the marriage.
Ownership: These assets remain with the individual who owns them, protecting personal inheritances and gifts from being divided in the divorce.
Significance: This distinction respects the personal nature of certain assets, ensuring that individual rights are maintained in the division process.
Divorce Grounds:
Since 2016, the only ground for divorce in Illinois is “irreconcilable differences.” This represents a move towards no-fault divorce, eliminating previous grounds like infidelity or abuse. This change emphasizes the breakdown of the marriage rather than assigning blame
Temporary Measures and Other Provisions:
- Temporary maintenance and child support can be requested during the divorce process, requiring financial affidavits for support.
- Temporary restraining orders and preliminary injunctions can preserve the status quo, particularly concerning the transfer of property and child relocation
Child Custody Considerations:
Child custody and visitation decisions in Illinois are centered around the best interests of the child. Several key factors are considered:
Child’s Wishes and Maturity: The child’s preferences are taken into account, considering their age and maturity level.
Adjustment to Home and School: The court assesses how well the child is adapting to their home and school environment, aiming to minimize disruption.
Parents’ Mental and Physical Health: The mental and physical well-being of both parents is evaluated, as it can impact their ability to provide a stable environment.
Cooperation in Decision-Making: The court considers the parents’ ability to work together in making decisions regarding the child’s upbringing, ensuring a cooperative and supportive co-parenting environment.
These considerations prioritize the child’s well-being and aim to create a custody arrangement that supports their emotional and developmental needs.
FAQs on Illinois Divorce
How do I file for divorce in Illinois?
To file for divorce in Illinois, follow these steps:
- Residency Requirement: Ensure either you or your spouse has been a resident of Illinois for at least 90 days before filing.
- Choose Grounds: Illinois only requires “irreconcilable differences” as the grounds for separation, indicating an irretrievable breakdown of the marriage.
- Hire the Right Attorney for YOU: Hire the right attorney for you, who can advise you and guide you through the divorce process. Educate yourself regarding divorce processes, like mediation or collaborative divorce, not just litigation.
- Engage in the Divorce Process Best for You: If you and your spouse decide to engage in collaborative divorce process or mediation work with your attorney to begin that process.
- File Petition: If you are participating in a litigated divorce, or if you have already arrived at divorce settlement agreements, work with your attorney to file the petition for divorce.
- Serve Your Spouse: If you are participating in a litigated divorce provide your spouse with a copy of the divorce papers, either through personal service or other approved methods.
- Response: If you are participating in a litigated divorce your spouse has 30 days to respond after being served and hire an attorney to represent them.
- Parenting Plan: If children are involved, create a parenting plan outlining custody, visitation, and child support arrangements.
- Financial Disclosures: Both parties must provide financial disclosures to help them educate themselves and arrive at equitable property division.
- Negotiate/Settlement: Attempt to reach agreements on property division, support, and parenting issues. If an agreement is reached, submit it to the court.
- Court Hearings: If you are participating in a litigated divorce process and were unable to arrive at settlement agreements attend any necessary court hearings if disputes exist. If necessary, you may need to prepare for and participate in a trial.
- Finalize Divorce: Once all issues are resolved, the court will issue a divorce decree.
- Follow Court Orders: Comply with court orders regarding property division, support, and parenting.
It is always advisable to consult with collaborative Divorce attorney at the beginning of your divorce journey so you can learn about your options.
How much will an Illinois divorce cost?
The cost of a divorce in Illinois can vary widely depending on several factors, including whether it’s contested or uncontested, the length of time and amount of work your attorneys and other professionals contribute to the process and the resulting fees, court filing fees, and the complexity of the case.
However, a contested divorce with extensive legal representation can escalate costs significantly, and generally litigated divorces cost significantly more than mediation or collaborative divorce. It’s essential to consult with an attorney to get a better estimate based on your specific circumstances. Legal aid or self-help resources may also be available for those with limited financial means.
How long do you have to wait for a divorce in Illinois?
In Illinois, a couple seeking a divorce based on “irreconcilable differences,” which is the only grounds for divorce in the state must have lived apart for 6 months. Once the divorce papers are filed and served, the process can proceed without a specific waiting period. However, the timeline for finalizing a divorce can vary based on factors such as court scheduling, case complexity, and whether the divorce is contested or uncontested. Typically, uncontested divorces where both persons agree on the terms can be finalized more quickly, while contested divorces may take longer due to court proceedings and negotiations.
Do I need to hire an attorney for a divorce in Illinois?
In Illinois, it’s not legally required to hire an attorney for a divorce, but whether you should depend on various factors. However, those who hired attorneys tend to have better divorce outcomes, especially if the divorce involves complex issues like significant assets, debts, children, or spousal support.
Does Illinois grant divorces based on marital fault?
No, Illinois primarily grants divorces based on the grounds of “irreconcilable differences,” which is a no-fault ground. This means that the state does not require either party to prove marital fault, such as adultery, cruelty, or abandonment, to obtain a divorce.
The focus is on the irretrievable breakdown of the marriage rather than blaming either spouse. This approach emphasizes a more amicable and cooperative process for divorce proceedings. However, fault-based grounds may still be mentioned in the divorce petition for informational purposes but are not a basis for granting the divorce.
What typically happens if I go to an Illinois court to obtain a divorce?
If you choose to file your divorce in an Illinois court here’s what typically happens:
- Filing the Divorce Petition: You start by filing the necessary divorce forms with the court clerk in your county.
- Serving Your Spouse: You must serve your spouse with a copy of the divorce papers through proper legal methods.
- Response: Your spouse has 30 days to respond after being served.
- Court Hearings: If disputes arise, you may attend court hearings to resolve issues related to property division, support, and parenting.
- Discovery: You participate in formal process of exchanging information and preparation for trial.
- Negotiations: You and your spouse may negotiate settlements on these matters outside of court.
- Trial: If you can’t reach a settlement you go to trial, present evidence and the Judge makes the final decisions.
- Finalization: Once all issues are resolved, the court will issue a divorce decree.
- Compliance: Both parties must follow court orders regarding property division, support, and parenting.
Handling your divorce yourself can save money but may be complex, especially in contested cases and often results in individuals overlooking important details. Legal guidance is recommended.
Do I have to attend court in order to get a divorce in Illinois?
In Illinois, it’s not always necessary to attend court to get a divorce. If your divorce is uncontested and both parties agree on all issues, you may be able to obtain a divorce through a simplified process, which may not require a court appearance. This also applies if you use mediation or collaborative divorce process to arrive at terms of your divorce agreement.
However, if your divorce is contested, involves disputes over property, support, or parenting, or if one party does not agree to the divorce, court hearings may be necessary to resolve these issues, and you may need to attend court. The specific requirements can vary based on the circumstances of your case.
What if I am in the military and out of the state of Illinois?
If you are in the military and stationed outside of the state of Illinois but want to file for divorce in Illinois, you can generally do so. Illinois allows active-duty military members to file for divorce in the state, even if they are not currently residing there. However, it’s essential to consult with an attorney or legal assistance office familiar with military divorce laws to ensure compliance with any specific requirements or considerations that may apply to your situation, such as the Service members Civil Relief Act (SCRA) and military family support obligations.
What if my partner does not want the divorce?
In Illinois, you can still proceed with a divorce even if your partner does not want it. The state allows for “irreconcilable differences” as the grounds for divorce, which does not require both parties to agree to the divorce.
If your spouse contests the divorce, it may become a contested divorce, and the court will need to address issues related to property division, support, and parenting through legal proceedings. It’s advisable to consult with an attorney to navigate the process effectively, especially in contested cases.
How soon can I file for divorce in Illinois?
In Illinois, you can file for divorce as soon as you meet the state’s residency requirement, which is that either you or your partner must have been a resident of Illinois for minimum 90 days before filing. Once this requirement is met, you can initiate the divorce process by filing the necessary paperwork with the court. The timeline for finalizing the divorce can vary depending on factors such as court scheduling, case complexity, and whether the divorce is contested or uncontested.
