Divorce is one of the most difficult experiences a person can endure. In addition to losing a cherished relationship, one must navigate a complex and uncertain legal process.
For short marriages with no children and minimal assets, the State of Illinois provides guidance documents to assist in getting the process started.
Divorce with children or shared significant assets is a different matter.
If you wish to learn more about divorce in Illinois, the following should help you establish a basic understanding of what the process looks like, and what you should do next.
What Are the Grounds for Divorce in Illinois?
Under the Illinois Marriage and Dissolution of Marriage Act (IMDMA), fault-based divorce has been eliminated.
In a divorce in Illinois, there is only one ground for dissolution: Petitioners must allege that irreconcilable differences have caused the breakdown of the marriage.
This applies whether the divorce is contested by the other party or not.
What is Uncontested Divorce in Illinois?
When the parties can remain amicable and work together, they may be able to get an uncontested divorce. In an uncontested divorce, the parties agree to all aspects of the property division and, if they have children, agree to all aspects of the custody order, parenting plan, and child support schedule.
An uncontested divorce can save both parties significant time, stress, and financial resources. Moreover, in Illinois, there is no waiting period for an uncontested divorce. If the parties agree on everything, they can move on with their lives once the court signs off on the property and/or childcare matters.
Note that Illinois residency requirements still apply. One or both of the parties must have lived in the state for at least 90 days before filing.
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What is Contested Divorce in Illinois?
Once a spouse receives the divorce papers, they have 30 days to respond. If they choose not to respond, the court will likely adopt the other spouse’s proposed property division and parenting plan. If their response is timely and the parties disagree as to the division of marital property or matters involving the child, they will have to go to court.
The court will most likely order the parties to mediation to see if they can negotiate an agreement. If no agreement is reached, the parties will have to have a hearing, and the court will decide. Under Illinois law, a court must enter its judgment of dissolution of marriage within 60 days of the close of the hearing.
The Basics of Division of Marital Assets and Debts in Illinois Divorce
One of the most important matters addressed in divorce is property division. Sometimes this process is governed by a prenuptial agreement signed by the parties before marriage. In the absence of a prenuptial agreement, the spouses can agree as to how to divide up their property in a written settlement agreement.
Should the division of property become contested, a court will have to decide through a process called “equitable division.” This means an Illinois court will divide assets and debts based on what is fair, not necessarily what is equal. In a divorce in Illinois, courts do not take fault into consideration when dividing marital property.
What Is Marital Property?
Only property classified as “marital property” is subject to equitable division. Marital property includes nearly all assets and debts acquired from the date of marriage. This includes income, retirement accounts, houses, cars, appreciation of assets, and credit card debt.
What Is Separate Property?
Under Illinois divorce laws, the following typically constitute separate property:
- Property acquired after a judgment of legal separation;
- Property excluded by valid agreement;
- Property acquired before the marriage; and
- Property acquired through inheritance or gift.
Separate property is not subject to equitable division. However, a court may take a party’s separate property into account when deciding how to equitably divide the marital property.
Determining Parental Responsibilities in Illinois Divorce
Upon filing for divorce, the Illinois Marriage and Dissolution of Marriage Act (IMDMA) requires the court to determine the “parental responsibilities” of the parents. This includes allocating significant decision-making responsibility and parenting time.
Significant Decision-Making Responsibility
“Significant decision-making responsibility” refers to the legal authority of parents in Illinois to make major decisions impacting the child’s life. When allocating significant decision-making responsibility, Illinois divorce courts consider a list of factors to help determine whether a particular allocation is in “the best interest of the child.” These factors include:
- The wishes of the child (assuming the child is of sufficient age and maturity to share a reasoned and independent preference);
- The child’s adjustment to their home, school, and community;
- The mental health and physical health of the child and parents;
- The parents’ willingness to cooperate in the day-to-day decision-making for the child;
- Each parents’ history of making significant decisions that impact the child;
- Past conduct or agreement of the parents relating to decision-making for the child;
- The preferences of the parents;
- The child’s needs;
- The distance between the parents’ homes, the cost and difficulty of transporting the child, and everyone’s day-to-day schedule;
- Whether a parent has engaged in behavior that seriously endangered the child;
- The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and other parent;
- Whether either parent has made threats of violence to the child;
- The presence of abuse to the child or another member of the child’s family.
- Whether a parent is a sex offender; and
- Any other factor that the court expressly finds to be relevant.
Courts typically award significant decision-making responsibility to both parents unless such an award is not in the child’s best interest. An example would be if one parent has endangered the child in any way.
Courts award significant decision-making responsibility in four general categories: extracurricular activities, health, religion, and education.
Parenting time refers to the amount of day-to-day and overnight time each parent has with the child. In Illinois, even if a parent has no significant decision-making authority, they will still receive reasonable parenting time with the child. This includes holidays and summer vacation.
Courts consider the best interest of the child when allocating parenting time. However Illinois courts examine a different list of factors.
Once the court has allocated significant decision-making responsibility and determined a permanent parenting time schedule—both in the best interest of the child—it will determine the child support obligations for either or both parents.
Note, that the primary residential parent is not necessarily always the recipient of child support. Sometimes the parent with less parenting time receives support from the parent with more parenting time. The method to determine child support in Illinois is known as the income shares method.
The Illinois Income Shares Schedule is used to determine how much financial support a child is entitled to. The schedule shows how much money parents of similar incomes spend on their children. Look for the parents’ combined adjusted net income on the schedule to determine the parents’ combined basic support obligation.
Mother and Father have two children and a combined adjusted net income of $11,000 per month. Pursuant to the Illinois Income Shares Schedule, the basic child support obligation for two children is $2,320 per month.
How Will the Court Assign Child Support?
The process of calculating and assigning child support is somewhat complex and depends on various factors. In addition to the basic child support obligation (above), courts consider:
- Whether the parents share parenting time;
- The number of overnights each parent has with the child;
- The percentage of each parent’s financial contribution;
- Any special needs of the child;
- daycare and extracurricular/school activities; and
- Health insurance.
If you find yourself having to go to court to establish or modify a parenting plan, it is crucial to obtain an attorney experienced in calculating child support.
Rely on Experience to Get You Through Your Divorce
Divorce is dangerous if you go it alone. If you need your appendix out, you wouldn’t operate on yourself. Similarly, you risk your well-being when you represent yourself in court. Whether it be your business, family inheritance, or precious time with your child, the risk isn’t worth it.
Finding an effective attorney experienced in Illinois divorce law is crucial. Contact Vantage Group Legal for a consultation. We pride ourselves on having the most professional and affordable legal services in Chicago and throughout Illinois.