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Illinois Divorce Laws
Residency and Filing Requirements:In order to file for a dissolution of marriage in Illinois, residency requirements must be met for the court to accept the case. If the court discovers it does not have jurisdictional rights to hear the case it will not be accepted or it will eventually be dismissed. The requirements are as follows:
The court shall enter a judgment of dissolution of marriage as long as one of the spouses was a resident of this State or was stationed in this State while a member of the armed services, and the residence or military presence had been maintained for 90 days prior to filing. The proceedings shall be had in the county where the plaintiff or defendant resides. (750 Illinois Compiled Statutes - Chapter 5 - Sections: 104 and 401)
Grounds for Filing:The Petition for Dissolution of Marriage must declare the appropriate Illinois grounds upon which the dissolution of marriage is being sought. The appropriate lawful ground will be that which the parties agree upon and can substantiate, or that which the filing spouse desires to prove to the court. The dissolution of marriage grounds are as follows:
The grounds for dissolution of marriage are as follows:
That the spouses have lived separate and apart for a continuous period in excess of 2 years and irreconcilable differences have caused the irretrievable breakdown of the marriage and the court determines that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family. If the spouses have lived separate and apart for a continuous period of not less than 6 months next preceding the entry of the judgment dissolving the marriage, as evidenced by testimony or affidavits of the spouses, the requirement of living separate and apart for a continuous period in excess of 2 years may be waived upon written stipulation of both spouses filed with the court.
(1) naturally impotent; (2) the respondent had a wife or husband living at the time of the marriage; (3) the respondent had committed adultery subsequent to the marriage; (4) the respondent has wilfully deserted or absented himself or herself from the petitioner for the space of one year, including any period during which litigation may have pended between the spouses for dissolution of marriage or legal separation;( 5) the respondent has been guilty of habitual drunkenness for the space of 2 years; (6) the respondent has been guilty of gross and confirmed habits caused by the excessive use of addictive drugs for the space of 2 years (7) the respodent has been guilty of extreme and repeated physical or mental cruelty (8) the respodent has been convicted of a felony or other infamous crime (9) the respondent has infected the other with a sexually transmitted disease. (750 Illinois Compiled Statutes - Chapter 5 - Sections: 401)
Filing Spouse Title:Petitioner. The Petitioner is the spouse who initiates the filing procedure with the family law or domestic relations court.
Non-Filing Spouse Title:Respondent. The Respondent is the spouse who does not file the initial dissolution of marriage papers, but rather receives them by service.
Court Name:In the Circuit Court of the __________ Judicial District, __________ County, Illinois. This is the Illinois court where the dissolution of marriage will be filed. The court will assign a case number and have jurisdictional rights to facilitate and grant the orders concerning, but not limited to: property and debt division, support, custody, and visitation. The name of the court is clearly represented at the top of all documents that are filed.
Primary Documents:Petition for Dissolution of Marriage and Judgment for Dissolution of Marriage. These are the essential documents needed to start and finalize a dissolution of marriage according to Illinois law. There are anywhere from ten to twenty other documents that may be required throughout the filing process. A few other documents that are typically filed during the process are: Verification Statement, Waiver of Two Year Statutory Period of Separation, Financial Disclosure Statement, and Entry of Appearance, Waiver, and Consent.
Court Clerk's Title:Office of the Clerk of the County Circuit Court. The clerk or the clerk's assistants will be the people managing your paperwork with the court. The clerk's office will keep the parties and the lawyers informed throughout the process in regards to additional paperwork that is needed, further requirements, and hearing dates and times.
Property Distribution:Since Illinois is an "equitable distribution" state, the marital property shall be divided in an equitable fashion. Equitable does not mean equal, but rather what is fair. The court will encourage the parties to reach a settlement on property and debt issues otherwise the court will declare the property award.
If the parties cannot otherwise agree, the court will equitably divided the marital property. Marital property is defined all property acquired by either spouse subsequent to the marriage, except the following, which is known as "non-marital property": (1) property acquired by gift, legacy or descent; (2) property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent; (3) property acquired by a spouse after a judgment of legal separation; (4) property excluded by valid agreement of the parties; (5) any judgment or property obtained by judgment awarded to a spouse from the other spouse; (6) property acquired before the marriage; (7) the increase in value of property; (8) income from property acquired.
The court shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including: (1) the contribution of each party to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property, including the contribution of a spouse as a homemaker or to the family unit; (2) the dissipation by each party of the marital or non-marital property; (3) the value of the property assigned to each spouse; (4) the duration of the marriage; (5) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children; (6) any obligations and rights arising from a prior marriage of either party; (7) any antenuptial agreement of the parties; (8) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; (9) the custodial provisions for any children; (10) whether the apportionment is in lieu of or in addition to maintenance; (11) the reasonable opportunity of each spouse for future acquisition of capital assets and income; and (12) the tax consequences of the property division upon the respective economic circumstances of the parties. (750 Illinois Compiled Statutes - Chapter 5 - Sections: 503)
Spousal Support:Not all cases involve support from one spouse to the other. The obligation of one spouse to support the other financially for a temporary or permanent basis is decided on a case-by-case basis as agreed to by the parties or at the court's discretion.
In a proceeding for dissolution of marriage a maintenance award for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct, in gross or for fixed or indefinite periods of time, and the maintenance may be paid from the income or property of the other spouse after consideration of all relevant factors, including: (1) the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance; (2) the needs of each party; (3) the present and future earning capacity of each party; (4) any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage; (5) the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment or is the custodian of a child making it appropriate that the custodian not seek employment; (6) the standard of living established during the marriage; (7) the duration of the marriage; (8) the age and the physical and emotional condition of both parties; (9) the tax consequences of the property division upon the respective economic circumstances of the parties; (10) contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse; (11) any valid agreement of the parties; and (12) any other factor that the court expressly finds. (750 Illinois Compiled Statutes - Chapter 5 - Sections: 504)
Restoration or Name Change:Upon request by a wife whose marriage is dissolved or declared invalid, the court shall order her maiden name or a former name restored. (750 Illinois Compiled Statutes - Chapter 5 - Sections: 413)
Counseling or Mediation Requirements:If the court concludes that there is a prospect of reconciliation, the court, at the request of either party, or on its own motion, may order a conciliation conference. The conciliation conference and counseling shall take place at the established court conciliation service of that judicial district or at any similar service or facility where no court conciliation service has been established. (750 Illinois Compiled Statutes - Chapter 5 - Sections: 404)
Child Custody:When minor children are involved in a dissolution of marriage, the Illinois courts will do everything possible to help lessen the emotional trauma the children may be experiencing. If the parents cannot come to an agreement regarding the issues involving the children, the court will establish the custody order at its discretion.
The court shall determine custody in accordance with the best interest of the child and shall not consider marital conduct. The court shall consider all relevant factors including: (1) the wishes of the child's parent or parents as to his custody; (2) the wishes of the child as to his custodian; (3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest; (4) the child's adjustment to his home, school and community; (5) the mental and physical health of all individuals involved; (6) the physical violence or threat of physical violence by the child's potential custodian, whether directed against the child or directed against another person; (7) the occurrence of ongoing or repeated abuse, whether directed against the child or directed against another person; and (8) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
When the court is to determine whether or not a joint custody arrangement is in the best interests of the children it shall consider these following factors; (1) the wishes of the child's parent or parents as to his custody; (2) the wishes of the child as to his custodian; (3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest; (4) the child's adjustment to his home, school and community; (5) the mental and physical health of all individuals involved; (6) the physical violence or threat of physical violence by the child's potential custodian, whether directed against the child or directed against another person; (7) the occurrence of ongoing abuse, whether directed against the child or directed against another person; (8) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child; and (9) whether one of the parents is a sex offender. (750 Illinois Compiled Statutes - Chapter 5 - Sections: 602, 603 and 610)
Child Support:Illinois child support guidelines uses the Percentage of Income formula which calculates the support obligation as a percentage of the income of the non-custodial parent who is obligated to support the child. This method simply applies a percentage to the income of the parent according to the number of children requiring support.
If the parties cannot agree to a support amount, the court will apply the support guidelines. If the court makes a finding that the application of the guidelines would be inappropriate, after considering the best interests of the child in light of evidence including but not limited to one or more of the following relevant factors: (a) the financial resources and needs of the child; (b) the financial resources and needs of the custodial parent; (c) the standard of living the child would have enjoyed had the marriage not been dissolved; (d) the physical and emotional condition of the child, and his educational needs; and (e) the financial resources and needs of the non-custodial parent.
If the court deviates from the guidelines, the court's finding shall state the amount of support that would have been required under the guidelines, if determinable. The court shall include the reason or reasons for the variance from the guidelines. (750 Illinois Compiled Statutes - Chapter 5 - Sections: 505, 507)
Copyright Notice: The above synopsis of Illinois divorce laws is original material which is owned and copyrighted by Divorce Source, Inc. This material has been adapted from applicable state laws and unauthorized reproduction is prohibited. Violation of this notice will result in immediate legal action.
Either or both parents may be ordered to pay reasonable and necessary child support, without regard to marital fault or misconduct. If the official Illinois guidelines are not appropriate, the court considers the financial resources and needs of the child, the standard of living the child would have enjoyed if the marriage had endured, the physical, emotional, and educational needs of the child, and the financial resources, needs, and obligations of both the non-custodial and the custodial parent. Support payments may be ordered paid directly to the court.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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