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Divorce – Fault vs. No Fault

Chicago Fault & No Fault Divorce

Illinois courts gain jurisdiction, or power over the divorce, if one partie has resided in the state of Illinois for at least 90 days. Many issues need to be decided in a divorce, and this article is only regarding how the court dissolves the marriage.

In 1977, the Illinois legislature rewrote the divorce laws in our state. The statute, which was eventually adopted and is still with us today, is known as the Illinois Marriage and Dissolution of Marriage Act.

All states in our country have "no-fault" divorce. Illinois is a bit unusual in that compared to other states, it has both fault and no-fault divorce. In order for a court to grant a divorce (known in Illinois as a "Dissolution of Marriage"), the court must make a finding that there is either (a) fault by one spouse as set forth in the statute or (b) that neither spouse is at fault, but "irreconcilable differences have caused the irretrievable breakdown of the marriage and efforts at reconciliation have failed or that future attempts would be impracticable and not in the best interest of the family."

In order for the court in Illinois to grant a no-fault divorce, the husband and wife must live separate and apart for a continual period in excess of two years and irreconcilable differences must be found to have caused the irretrievable breakdown of the marriage and further efforts at reconciliation have failed or future attempts at reconciliation would be impracticable and not in the best interest of the family. The two-year separation requirement however, can be reduced to six months if the parties sign an affidavit, which waves the two-year separation requirement. Although many divorces in Illinois start off by alleging fault committed by the other spouse, the vast majority of cases eventually settle based upon no-fault of either party.

What if the husband and wife decide, during his and her separation, to try "one more time" to repair their marriage; does that negate the original separation period? No. The law wants to encourage couples to attempt reconciliation, and they do not want to discourage people from making these attempts. Specifically, the statute states that "at any time after the parties cease to co-habitat, the following periods shall be included in the period of separation": (a) any period of co-habitation during which the parties attempted to reconcile under the guidance of a therapist, counselor, etc. or (b) any period of co-habitation under written agreement of the parties to attempt to reconcile.

Last, what does "live separate and apart" mean? Although the statute is not clear, our courts have interpreted the phrase to include periods when the parties resided in the same residence, but had clearly not lived as husband and wife. For example, many couples find it difficult to live in separate residences immediately because of financial constraints. However, they may live in separate bedrooms and not engage in sexual relations. Our courts have found that sort of arrangement can be considered living separate and apart.

In order for an Illinois court to grant a Dissolution of Marriage based upon fault of one spouse, the court must find one of the following: that, without cause or provocation by the petitioner: (1) the respondent was at the time of such marriage, and continues to be naturally impudent, (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 willfully has 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 two years, (6) the respondent has been guilty of gross and confirmed habits caused by the excessive use of addictive drugs for the space of two years, (7) has attempted the life of the other by poison or other means showing malice, (8) has been guilty if extreme and repeated physical or mental cruelty, (9) has been convicted of a felony or other infamous crime, (10) or the respondent has infected the other with a sexually transmitted disease. "Excessive use of addictive drugs," as used in this Section, refers to use of an addictive drug by a person when using the drug becomes controlling or a dominant purpose of his or her life.

All states in the United States completely revamped their divorce laws in the 1970ís. Illinois passed their new statute, the Illinois Marriage and Dissolution of Marriage Act, in 1977. The political battled in our state was quite fierce, and one of the main opponents to liberalized divorced laws was the Roman Catholic Church, among others. One compromise contained in our current state statute was to allow parties to settle divorce type issues (relating to, for example, property and children) without asking for a divorce. Although divorce has become quite common in our society, there are still a number of people who object to completely dissolving their marriage, either because they want or need some of the protections afforded in a divorce or are opposed to divorce based upon religious grounds. Many people do not get divorced because they need the health insurance provided by the other spouse, or they have been married many years and are elderly, etc.

The compromise in Illinois was to allow "legal separation." Essentially, any person living separate and apart from his or her spouse without fault may have a remedy for reasonable support and maintenance while they still live apart. Hence, by filing a Petition for Legal Separation with a circuit court in any county in our state, the court can award support and deal with other issues between the parties without terminating the marriage. Once the Judgment for Legal Separation is entered by the court, property can be subsequently acquired and held separately as non-marital property.

It is important to understand that the other spouse is not prohibited from filing his or her own Petition for Dissolution of Marriage and requesting that the court completely dissolve the marriage.

Unmarried parents of a child often assume that he or she have the same rights as do married parents of a child. While in many ways this is true, there are important differences that need to be recognized.

One of the most important distinctions is that unmarried parents seriously should consider having a court case in Illinois, even if the parties are living together as a family unit. Why? One reason is that it is important for the father of the child to establish properly his paternity of that child. This can be accomplished in Illinois by merely completing the state form entitled "Voluntary Acknowledgment of Paternity." Many couples complete this form at the hospital when the child is born, in order for the father to be listed on the child's birth certificate.

However, it is important to establish that the family is living together as a unit. One problem when a family unit dissolves, and the parents are not married is that for example, one parent takes the child and moves to another location. At that point, the other parent has no officially outlined rights regarding child. Of course that other parent has rights, but if there has never been a court case, that parent would need to "start at the beginning" and go to court to enforce his or her rights. If there was already a case on file with the court, it is much easier and quicker to establish temporary and long-term rights for each parent after the breakup of the family unit. Unfortunately, we have seen far too many examples of a parent who suddenly leaves the family home with the child and refuses to allow the other parent to see that child. The other parent  usually calls the police, who inform him or her that, because there is no court order, a Judge must determine each parent's rights and responsibilities. This inevitably creates a crisis situation, which is in nobody's interest.

Another important aspect of the Illinois Parentage Act of 1984 is that it allows a custodial parent to claim child support back until the date the child was born. However, if the parties were living together as a family unit, it would not be appropriate to award child support for those time periods. By filing a case in court when the family is living together as a unit, not only establishes each partie's rights with respect to the child but also becomes a record that the family is living together as a unit. We have seen many cases in which the question of back child support becomes hotly contested, and the question is often if the parties were living together as a family unit during certain time periods.

Another important aspect of the law is that both the father and mother have the right to challenge whether or not the father is, in fact, the natural father of the child. However, many people do not realize that this right is limited. How? Once paternity is established, either by the court and/or acknowledged (agreed to) by the parties, it is very difficult to "undo" this determination.

As most people understand, the paternity can easily be determined by a DNA test. What many people do not realize is that you cannot request a DNA test at any time. A common scenario is where the parties agree in court (or at the hospital on a voluntary acknowledgment of paternity) that the man is the father of the child. Once a court, for example, has accepted this acknowledgment of paternity, the father no longer has the absolute right to demand a DNA test. The lesson to be learned is that if either party has any doubts regarding paternity, they should insist on a DNA test. Before paternity is established, either party has the right to insist on the DNA test; afterwards, they do not (unless both parties agree to the test). Finally, many unmarried parents assume they have the same rights as married parents. While this is true in many regards, it is not true in all regards. For example, in a divorce case, the court has the right to regulate whether or not a custodial parent can move out of state with the child. Under the Illinois Parentage Act of 1984, the court has no real authority to block this removal of the child from Illinois. However, a non-custodial parent can, with the assistance of an attorney, negotiate a settlement in any custody matter in court, which specifically includes language that requires the custodial parent to seek court permission before permanently removing the child from Illinois (similar to the divorce rules). This is an added measure of protection that a non-custodial parent can secure from the court.

Finding a trusted Divorce Attorney

M. Scott Gordon & Associates understand the delicate intricacies of a dissolution of a marriage including how to navigate a fault or no fault divorce.  Email the Chicago Divorce Attorneys of M. Scott Gordon & Associates or call 312.360.0250 or 847.329.0101 today.

M. Scott Gordon & Associates
4709 W. Golf Road, Suite 475
Skokie, Illinois,, 60076 USA
847.329.0101