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Chicago Divorce Fault vs. No-Fault

Chicago Fault vs. No-Fault Divorce

By: M. Scott Gordon

If you’re a Chicago resident and you’re thinking about filing for divorce, you may have heard that Illinois’s statute retains options both for fault and no-fault divorce. In recent years, a number of states have done away with divorce based on fault, and most couples who dissolve their marriages indicate that they have irreconcilable differences. In other words, spouses will claim one of the following when filing for divorce:

  •      Fault of one of the spouses (fault-based divorce); or
  •      Irreconcilable differences (no-fault divorce).

When one spouse is angry with the other, divorce proceedings often begin with an allegation of fault. However, in most cases, spouses will end up with a no-fault divorce. What are the differences between the two? And why might one spouse insist on a fault divorce or a no-fault divorce?

Grounds for Fault in Illinois Divorce Cases

Before we get into the pros and cons of the different types of divorce in our state, let’s take a look at the requirements for alleging fault. In general, Illinois law permits a fault divorce if one of the following conditions exists:

  •      Impotence;
  •      Bigamy;
  •      Adultery;
  •      Desertion or abandonment for one year;
  •      Alcohol abuse for two years;
  •      Attempted murder of the spouse;
  •      Extreme and repeated mental cruelty;
  •      Extreme and repeated physical cruelty;
  •      Felony conviction; or
  •      Infection of the spouse with a sexually transmitted disease.

Now, why would someone want to allege fault in a divorce instead of irreconcilable differences?

Pros and Cons: Fault vs. No-Fault Divorce

Fault-based divorce doesn’t have the same waiting period as no-fault divorce.

In order to be eligible for a no-fault divorce, spouses must live “separate and apart” for at least two years, or they must live separate and apart for at least six months and both agree to waive the 2 year requirement. However, Illinois courts want couples to repair their marriages if possible. As such, periods in which the spouses attempted reconciliation can still count toward the time requirement for living separate and apart. These questions can get very complicated, however, and it’s always important to speak with an experienced Chicago divorce lawyer about your case.

For many couples, no-fault divorce is a better option simply because it means that problems in the marriage—including those that may be grounds for a fault-based divorce—won’t come out into the open. However, some spouses may seek a fault-based divorce because it can allow for a faster dissolution of the marriage.

Misconceptions About Fault-Based Divorce

Some Chicagoans are under the misconception that one spouse’s fault can be taken into consideration when a court determines the amount of alimony or child support. This is not true. The Illinois statute simply does not permit a court to consider one spouse’s fault when making determinations about financial support for a spouse or the children. Likewise, fault doesn’t play a role in other financial aspects of the divorce, including property division.

When can fault be a factor in a judge’s decision? In some cases, depending on the specific acts of the spouse at fault, a court may factor that fault into a final decision about visitation and/or child custody.

If you are considering filing for divorce, you should discuss your case with an experienced Chicago divorce lawyer. An experienced family lawyer at the law offices of M. Scott Gordon & Associates can answer your questions about fault and no-fault divorce today.