What are “grounds”?
Prior to 2016, Illinois allowed both fault and no-fault as grounds for divorce. Previous fault grounds for divorce included adultery, physical or mental cruelty, abandonment, drug or alcohol addiction, imprisonment for a felony, and impotence. In 2016 all fault grounds for divorce were eliminated. This left irreconcilable differences as the only ground, or reason for a divorce. Many other states also follow this model, making the divorce process simpler and less to blame for both parties.
Even before the fault grounds for divorce were eliminated, the relative guilt or responsibility of either party for the breakup of the marriage could not be considered by a judge in determining the financial responsibilities of the parties. Financial responsibilities include division of marital property and debts, spousal support, or child custody and support. This meant that just because one spouse had an affair, or was emotionally abusive, there was never a financial penalty assessed on that spouse for that behavior. Therefore, eliminating the fault grounds for divorce did not affect the rights of the innocent party.
No-Fault Divorce in Illinois.
Under the current no-fault system, the parties must only prove that they have irreconcilable differences that led to the breakdown of the marriage. This includes the fact that attempts at reconciliation have failed, and that further attempts at reconciliation would not be effective. The parties may file for divorce at any time, even if they are not currently separated, if they both consent to the divorce. Once the parties have been living separately for six months, there is an irrebuttable presumption that irreconcilable differences have occurred. This means that after six months’ separation, either party may obtain a divorce without the consent from the other party.
Of course, simply obtaining a divorce is only one part of the process. Division of marital property and debts, determination of spousal support, allocation of parenting responsibility (commonly referred to as child custody), and child support are separate issues that are decided by agreement of the parties or in a separate trial. Some divorces can take months or even years to resolve. Usually, the divorce is granted after all issues have been resolved, but it is possible to obtain a no-fault divorce and reserve the other issues for later determination, which is called a bifurcated divorce.
So can “bad behavior” ever be considered?
Even though fault is generally irrelevant in obtaining a divorce in Illinois, there are still some cases in which the relative fault of the parties may come into play in the divorce proceedings. If one party has been having an affair, for example, and has been using marital property to pay for trips, gifts, jewelry, or other things incidental to the affair, the other spouse may make a claim for “dissipation.” This can possibly reduce the guilty party’s share of the remaining marital property. “Dissipation” is when one spouse used the resources of the marriage for purposes unrelated to the marriage. Another example is a spouse who is physically abusive, and may have his or her parenting time restricted or even suspended because of this behavior.
No-Fault does not mean a shared attorney.
Some couples may believe that, since the fault grounds have been eliminated and there is no need to prove why the marriage is being dissolved, they can share an attorney for their divorce proceedings. Illinois ethical rules do not permit attorneys to represent both parties in a divorce, even if they agree on everything. It is important to remember that the attorney for the spouse who files for the divorce represents only that person. The other party is not required to get his or her own attorney, but it is always advisable to let an attorney look over any legal document before you sign.
For more information on the ground for divorce in Illinois click here.