Do My Spouse and I have to Live in Separate Homes to Be Eligible for Divorce?
By: Gordon & Perlut, LLC
When you are making plans to file for divorce in Chicago, it often seems like the best decision for either you or your spouse is to move out of the home you are sharing. In many situations, one of the parties will remain living in the formerly shared home (at least until the divorce case is filed), while the other spouse will find a new house or apartment in the Chicago area.
When spouses who share minor children from the marriage decide to end their relationship, this kind of physical separation can be especially difficult. In families with young children, as well as in households where finances are tight, the spouses might wonder if they can still be eligible to get divorced if they are not actually living in separate properties.
Generally speaking, you must be living “separate and apart” to be eligible for divorce under the Illinois Marriage and Dissolution of Marriage Act (IMDMA), but we will provide you with more information.
Historical Use of “Separate and Apart” Under Illinois Law
Back in 2016 and in the years that followed, Illinois divorce law went through some major changes. The IMDMA changed the way it talked about child custody, the state moved to an entirely “no fault” divorce system, and other revisions designed to modernize the law and to make it more flexible for different kinds of families were implemented. Before those legal changes came about, the law required married couples to live “separate and apart” for at least six (6) months and often two (2) years before one of them could be eligible to file for a “no fault” divorce, regardless of whether they had minor children from the marriage. Yet case law interpreted “separate and apart” to include living under the same roof, as long as there was testimony that the couple stopped living like husband and wife (such as living in separate bedrooms, no longer engaging in sexual relations, etc.).
Currently, if spouses can agree to all elements of their divorce case so they will have what is known as an uncontested divorce, the IMDMA does not require any specific waiting period prior to filing. However, if the divorce is disputed, meaning spouses cannot agree to issues such as property division or the allocation of parental responsibilities, they will typically need to be living “separate and apart” for 6 months, but definition is still as before (in other words, living under the same roof does not necessarily not count towards the 6 month period).
Understanding the “Separate and Apart” Requirement
Why do spouses need to live “separate and apart” for six months if they cannot agree to all terms of their divorce? Since Illinois moved away from a fault-based system for divorce, parties can only seek a divorce by pleading that “irreconcilable differences have led to the irretrievable breakdown of the marriage.” In situations where the spouses are not in agreement, the court will need to determine whether the irreconcilable differences requirement has been met. Under the IMDMA, there is a “irrebuttable presumption” that the requirement has been met if the parties are living “separate and apart.”
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