Friday, December 21, 2007

Illinois Divorce Laws

Illinois Divorce Laws

Residency Requirements for Divorce in Illinois

The spouse filing for dissolution must have been a resident of Illinois for 90 days immediately prior to filing for dissolution of marriage. The dissolution of marriage may be filed in a county where either spouse resides.
[750 Illinois Compiled Statutes Annotated; Chapter 5, Sections 104 and 401].

Legal Grounds for Divorce in Illinois

1. No Fault Divorce: Irreconcilable differences have caused the irretrievable breakdown of the marriage and reconciliation has failed or further attempts at reconciliation are impractical and the spouses have been living separate and apart without cohabitation for 2 years. (If both spouses consent, the time period becomes 6 months).
[750 Illinois Compiled Statutes Annotated; Chapter 5, Section 401].
2. General Divorce:
1. Impotence
2. Adultery
3. Habitual drunkenness for 2 years and/or drug addiction
4. Conviction of a felony
5. Willful desertion for 1 year
6. Cruel and inhuman treatment
7. Attempted poisoning or otherwise endangering the life of the spouse
8. Infection of the other spouse with a communicable disease
9. Bigamy
[750 Illinois Compiled Statutes Annotated; Chapter 5, Section 401].

Legal Separation in Illinois
The residency requirement specified in the statute is that an action for legal separation must be brought where the Respondent resides. Any person living separate and apart from his or her spouse, without fault, may obtain a legal separation with provisions for reasonable support and maintenance.
[750 Illinois Compiled Statutes Annotated; Chapter 5, Section 402].

Simplified/Special Divorce Procedures in Illinois

Marital settlement agreements are specifically allowed and encouraged [750 Illinois Compiled Statutes Annotated; Chapter 5, Section 502]. In addition, Illinois has an approved "Joint Simplified Dissolution" procedure and petition found in 750 Illinois Compiled Statutes Annotated; Chapter 5, Section 452. To use this simplified procedure:

1. The spouses must not have been married over 5 years
2. The spouses must neither have had nor adopted any children
3. The wife cannot now be pregnant by the husband
4. Neither spouse can own any real estate
5. Both spouses must certify that neither is dependent on the other for support (or must waive any type of alimony)
6. The market value of all marital property must be less than $5,000.00
7. The combined gross annual income of both spouses must be less than $25,000.00.

Forms are available at any Office of the Clerk of a Circuit Court.

Divorce Mediation or Counseling Requirements
At the request of either spouse, or on the court's own initiative, the court may order a conciliation conference if it is felt that there is a prospect of reconciliation.
[750 Illinois Compiled Statutes Annotated; Chapter 5, Section 404].

Divorce Property Distribution

Illinois is an "equitable distribution" state. Each spouse retains the non-marital (separate) property that he or she owned prior to the marriage and any property acquired by gift or inheritance during the marriage. The court will distribute all other marital property, without regard to fault, considering the following factors:

1. The contribution of each spouse to the acquisition or dissipation of the marital or non-marital property, including the contribution of each spouse as homemaker or to the family unit
2. The value of each spouse's non-marital property
3. The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home to the spouse having custody of the children
4. The length of the marriage
5. The age and health of the spouses
6. The occupation of the spouses
7. The amount and sources of income of the spouses
8. The vocational skills of the spouses
9. The employability of the spouses
10. The estate, liabilities, and needs of each spouse and the opportunity of each for further acquisition of capital assets and income
11. The federal income tax consequences of the court's division of the property
12. Any premarital agreement
13. Liabilities of the spouses (including obligations from a prior marriage)
14. Whether the property award is instead of or in addition to maintenance
15. Any custodial provisions for the children

[750 Illinois Compiled Statutes Annotated; Chapter 5, Section 503].

Alimony and Spousal Support
The court may award maintenance to either spouse for a period of time it considers just. Marital fault is not a factor. The factors to be considered are:

1. The time necessary to acquire sufficient education and training to enable the spouse to find appropriate employment
2. The standard of living established during the marriage
3. The duration of the marriage
4. The age of the spouses
5. The physical and emotional conditions of the spouses
6. The income and property of each spouse
7. Whether the spouse seeking support is able to support himself or herself or is unable to seek employment because he or she is the custodian of a child
8. Any contributions or service by the spouse seeking support to the education, career, training, potential, or licensure of the other spouse
9. Any marital settlement agreement
10. Any other just and equitable factor

[750 Illinois Compiled Statutes Annotated; Chapter 5, Section 504].

Spouse's Name After Divorce
Upon the wife's request, her maiden or former name will be restored.
[750 Illinois Compiled Statutes Annotated; Chapter 5, Section 413]

Child Custody After Divorce
Sole or joint custody may be awarded, based upon the best interests of the child and upon the following factors:

1. Preference of the child
2. The wishes of the parents
3. The child's adjustment to his or her home, school, and community
4. The mental and physical health of all individuals involved
5. The relationship of the child with parents, siblings, and other significant family members
6. Any history of violence or threat of abuse by a parent, whether directed against the child or against another person
7. The willingness and ability of each parent to encourage a close and continuing relationship between the child and the other parent

Marital misconduct that does not directly affect the parent's relationship with the child is not to be considered. There is a presumption that the maximum involvement and cooperation of the parents is in the best interests of the child. However, this is not to be considered a presumption that joint custody is always in the best interests of the child.

For an award of joint custody, the court will also consider the following factors:

1. The ability of the parents to cooperate effectively and consistently
2. The residential circumstances of each parent
3. Any other relevant factor

The parents shall prepare a Joint Parenting Agreement (which may be part of a Marital Settlement Agreement) which will specify each parent's rights and responsibilities for:

1. Personal care of the child
2. Major educational, health care, and religious training decisions

The Joint Parenting Agreement will also include provisions specifying mediation of problems and periodic review of the terms of the Agreement. Joint parenting does not necessarily mean equal parenting time. The physical residence for the child is to be determined by either:

1. An agreement between the parents
2. A court order based on the factors listed above

[750 Illinois Compiled Statutes Annotated; Chapter 5, Sections 602, 602.1, 603.1, and 610].

Child Support After Divorce
Either or both parents may be ordered to pay reasonable and necessary child support, without regard to marital fault or misconduct. If the official guidelines are not appropriate, the following factors are considered:

1. The financial resources and needs of the child
2. The standard of living the child would have enjoyed if the marriage had not been dissolved
3. The physical and emotional conditions and educational needs of the child
4. The financial resources, needs, and obligations of both the noncustodial and the custodial parent

The court may require support to include payment of a child's health insurance premium. Support payments may be ordered to be paid directly to the clerk of the court. There are official guidelines for the amount of support contained in the statute. Illinois Driver's licenses may be revoked if child support obligations are not met.
[625 Illinois Compiled Statutes Annotated; Chapter 5, Sections 7-703 and 750 Illinois Compiled Statutes Annotated; Chapter 5, Sections 505, 505.2, and 507].

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