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Grounds for Divorce

The Gitlin Law Firm, P.C., Woodstock, Illinois    © 2013

Q:What is the most common ground for an Illinois' divorce?

A:In Illinois, the most common ground for divorce is “no fault” divorce (sometimes called irreconcilable differences).

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Q:What is “no fault” divorce?

A:Illinois is not what is called a “pure” no fault state. In a pure no fault state there is no waiting period for the parties to live separately before there can be a divorce on grounds of no fault. In Illinois there is a waiting period. The legal standard is the irreconcilable differences must have caused the irretrievable breakdown of the marriage and that future efforts at reconciliation are impracticable and not in the best interest of the family.

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Q:How does the waiting period work for Illinois divorces?

A:The waiting period generally is six months. This means that if a divorce is not opposed, the parties must be residing separately for a continuous period of more than six months. However, to be divorced with only a six month separation period, an agreement (stipulation) must be signed by both parties which states the parties waive the requirement that they otherwise would have had to live separately for a continuous period of two years.  (Note that including Illinois only seven states have a separation period (without agreement) of two years or more.)

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Q:While my husband and I have not been living in separate residences, we have been living in separate bedrooms and we have not had sex in a long time. Is this enough for us to be able to get a divorce on grounds of no fault?

A:This is probably enough to get a no fault divorce. Under a significant Illinois case – the Kenik case (536 N.E.2d 982 (1st Dist., 2d Div. 1989) – living separately does not necessarily mean that the parties have to live in separate houses. Instead, a lawyer can work with you to determine if you have grounds which would fit within the parameters of the Kenik decision.

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Q:It does not look like I can get a divorce on grounds of no fault. What are the other grounds for divorce that can be used?

A:The second most common grounds for divorce is mental cruelty. A petition using such grounds for divorce may state that grounds are “mental cruelty” or the petition may state, “without cause or provocation, the Respondent [the other party] was guilty of extreme and repeated mental cruelty.”

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Q:Extreme and repeated mental cruelty sounds bad. Is mental cruelty difficult to prove?

A:It depends. I have rarely found that parties actually go to battle over grounds of divorce because it is not cost-effective. For example, a party could simply choose to separate and then wait for two years. In Illinois after waiting for this two year period, in many cases it is virtually impossible to successfully contest grounds of no fault divorce. If the ground of mental cruelty is not contested then obtaining a divorce on the ground of mental cruelty is usually quite easy. The key factor is whether grounds of mental cruelty are contested.

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Q:My husband has committed adultery. Isn't it to my advantage to file a divorce petition using grounds of adultery?

A:No. Illinois is a no fault state in the sense that adultery cannot be considered in the division of property or in awards of alimony (maintenance).  Illinois divorce law regarding property and maintenance states that the court determine the issues “without regard to marital misconduct.”   Illinois divorce law regarding custody states, “the court shall not consider the conduct of a present or proposed custodian that does not affect his relationship with the child.”  Only one portion of the statute which allows a party to consider fault:  the portion addressing what is called “dissipation of property.” Thus, whether adultery may have occurred is generally not relevant to the court – except in establishing grounds (which will give a person the right to obtain a divorce). Regarding dissipation, see the Gitlin Law Firm's Q&A.

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Q:Can you state it a little more simply? What if a private investigator demonstrates that my husband is cheating? Won't this impact the case?

A:Again, the answer is no. One of the lines my father and former partner used when talking about adultery is that the court will not care if your husband / wife was fornicating on the corner of Madison and LaSalle Street in Chicago. This will only give you the right to obtain a divorce.

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Q:Does this mean that I should be free to date during my divorce?

A:Yes, but only if you want to obtain an expensive divorce. See Gitlin Law Firm's discussion of dating during a divorce: www.gitlinlawfirm.com/dating.htm

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Q:What about in a collaborative divorce?  How are grounds handled if we handle our divorce collaboratively?

A:Many states have provisions for the drafting of a joint petition for dissolution of marriage.  In Illinois, a joint petition for dissolution of marriage is limited to what are essentially the simplest cases.  In a collaborative divorce, one party files a divorce case and is the Petitioner and there is an agreement regarding the grounds to be used in the divorce petition.  Generally, the petition for dissolution of marriage in a collaborative case in Illinois is not filed until after a settlement has been reached.

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The Gitlin Law Firm, P.C., provides the above information as a service to potential and current clients. A person's accessing the information contained in this web site, is not considered as retaining The Gitlin Law Firm for any case nor is it considered as providing legal advice. The Gitlin Law Firm cannot guarantee the outcome of any case.

The Gitlin Law Firm, P.C.
Practice Limited to Family Law
663 East Calhoun Street
Woodstock, IL 60098


Gitlin Law Firm, P.C.

Updated:  April 23, 2013

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