Quick Contact Form
  • This field is for validation purposes and should be left unchanged.

4709 W. Golf Road, Suite 475, Skokie, Illinois, 60076   I   180 N. La Salle Street, Suite 3700, Chicago, Illinois, 60601

Divorce – Fault vs. No Fault

Chicago Divorce Attorney Explains Fault & No Fault Divorce

Responsive Skokie divorce lawyers serving Chicago and Cook County

Illinois courts gain jurisdiction, or power, over the divorce if one party has resided in the State of Illinois for at least 90 days. Many issues need to be decided in a divorce, and this article pertains only to how the court dissolves the marriage. However, a Skokie divorce lawyer from M. Scott Gordon & Associates can help you fully understand the legal issues involved in a divorce.

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 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 on the part of one spouse as set forth in the statute or (b) no fault on the part of either spouse, 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 an Illinois court to grant a no-fault divorce, the husband and wife must live separate and apart for a continuous period in excess of two years and irreconcilable differences must be found to have caused the irretrievable breakdown of the marriage. In addition, further efforts at reconciliation must have failed or future attempts at reconciliation must be considered impracticable and not in the best interest of the family. However, the two-year legal separation requirement can be reduced to six months if the parties sign an affidavit waiving the two-year separation requirement. Although many divorces in Illinois begin by alleging fault on the part of the other spouse, the vast majority of cases eventually settle with no fault attributed to either party.

What if the husband and wife decide, during their separation, to try "one more time" to repair their marriage? Does that negate the original separation period? The answer is no. The law wants to encourage couples to attempt reconciliation, not to discourage them 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. Our Cook County divorce attorneys can answer any questions you may have about the complexities of the separation period, as well as what options, including mediation, are available to you going into a divorce.

Lastly, what does "live separate and apart" mean? Although the statute may not be 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 consider that type of arrangement as living separate and apart. A Skokie divorce lawyer can explain your options and the legal implications of specific living arrangements.

In order for an Illinois court to grant a dissolution of marriage based upon the 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 of 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" in this section means that the drug becomes a controlling or a dominant purpose of the person’s life. Fault is a complicated divorce issue. Seek guidance from a knowledgeable Skokie divorce lawyer on issues of fault in your divorce.

All U.S. states completely revamped their divorce laws in the 1970s. Illinois passed its new statute, the Illinois Marriage and Dissolution of Marriage Act, in 1977. The political battle 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 issues, such as those relating to 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 marriages, either because they want or need some of the protections and benefits marriage affords, such as health insurance, or because they are opposed to divorce for religious reasons. In other cases, couples have been married many years and are elderly, and they may believe it is easier to remain married.

The compromise in Illinois was to allow "legal separation." Essentially, any person living separate and apart from the spouse without fault may have a remedy for reasonable support and maintenance while they still live apart. Hence, filing a Petition for Legal Separation with a circuit court in any county in our state can allow the court to 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 acquired and held separately as non-marital property.

It is important to note that the other spouse is not prohibited from filing a Petition for Dissolution of Marriage and requesting that the court completely dissolve the union.

Unmarried parents of a child often assume that he or she have the same rights as 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 significant 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 because the father of the child properly must establish his paternity of that child. This can be accomplished in Illinois by merely completing the state form titled "Voluntary Acknowledgment of Paternity." Many couples complete this form at the hospital when the child is born so the father can be listed on the child's birth certificate.

However, it is important to establish that the family is living together as a unit. When a family unit dissolves, and the parents are not married, problems can occur. For example, one parent may end up moving to another location with the child. At that point, the other parent has no officially outlined rights to the child. Of course, both parents have rights, but if there has never been a court case, the parent without the child would need to start at the beginning and go to court to enforce those 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 informs the person 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. To avoid such circumstances, it is advisable that you seek the counsel of a trusted Skokie divorce lawyer to help you understand your rights and obligations.

Another important aspect of the Illinois Parentage Act of 1984 is that it allows a custodial parent to claim back child support from 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 that time period. Filing a case in court when the family is living together as a unit, not only establishes each party’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 critical question is often if the parties were living together as a family unit during certain time periods.

The law also states that both parents have the right to challenge if the father is, in fact, the natural father of the child. However, many people do not realize that this right is limited. Once paternity is established by the court or acknowledged by the parties, it is very difficult to "undo" this determination.

Paternity can be easily 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 that the parties agree in court (or at the hospital with a voluntary acknowledgment of paternity) that the man is the father of the child. Once a court 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, a DNA test should be insisted upon. Before paternity is established, either party has the right to insist that a DNA test be performed. Afterward, both parties must agree to the test.

Unmarried parents have many, but not all, of the same rights as married parents. 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 negotiate a settlement with the assistance of an attorney in any court custody matter that specifically includes language requiring the custodial parent to seek court permission before permanently removing the child from Illinois. This is similar to the divorce rules and is an added measure of protection that a non-custodial parent can secure from the court. Our Cook County divorce attorneys are well versed on the issue of paternity and can explain how the law applies to your case.

Finding a trusted Cook County divorce attorney

M. Scott Gordon & Associates understands the intricacies involved in dissolution of marriage, and we can help you navigate the process of a fault or no-fault divorce.  Email the Chicago divorce attorneys of M. Scott Gordon & Associates or call 847.329.0101. We serve Chicago, Evanston, Skokie, Northbrook, Niles, Glenview and the Cook County area.