Divorce law is state-specific. Knowing the divorce law in your state is important. If you are getting a divorce in Illinois, here are answers to some of the questions that you may have about Illinois family law.
These questions are grouped by topic area. You will find answers to your questions about:
How to get a divorce in Illinois (The Illinois Divorce Process);
Your rights and responsibilities in an Illinois divorce (Illinois Divorce Law);
Working with divorce lawyers in Illinois (Illinois Divorce Lawyers);
Child Support, “Custody” and Parenting Time in Illinois (Divorce and Children in Illinois); and
Maintenance (a/k/a “Alimony”) in Illinois (Alimony in Illinois); and
Generally Asked Questions (Other Illinois Family Law Questions).
Illinois Divorce Process
1. How long do my spouse I need to be separated before we can get a divorce in Illinois?
Illinois no longer has a required separation period in divorce.
If you and your spouse agree, you can get a divorce at any time. If you don’t agree, you may need to wait six months before you can finalize your divorce. (After you and your spouse have “lived separate and apart” for six months, the court presumes that you have irreconcilable differences.)
You can be living in the same house and still be deemed to be living “separate and apart,” as long as you are no longer living together as man and wife.
NOTE: You can FILE for divorce whenever you want. You just can’t finalize your divorce unless your spouse agrees or until you’ve been separated for six months.
2. How do I get an annulment in Illinois?
An annulment treats your marriage as if it never even happened. There are only limited grounds upon which you can get an annulment in Illinois. Those grounds are:
- A party lacked the capacity to consent to the marriage. That party may not have been able to consent because s/he didn’t have the mental capacity to know what s/he was doing. Or, s/he may not have had the appropriate mental capacity to consent to marriage if s/he was under the influence of alcohol, drugs, etc., at the time of the marriage. Also, if someone was induced to enter into a marriage by force, duress, or fraud, s/he may not have “consented” to the marriage.
- A party didn’t have the physical capacity to consummate the marriage by sexual intercourse and the other party didn’t know that at the time of the marriage.
- A party was only 16 or 17 years old and didn’t have their parents’ or guardian’s consent to get married; or
- The marriage was prohibited. (For example, you can’t marry someone who is already legally married to someone else.)
(NOTE: Legally annulling your marriage does NOT necessarily annul your marriage religiously. Religious annulment is a whole separate thing! If you are looking for a religious annulment, talk to your priest, rabbi, minister, immam, or appropriate religious official.)
3. If my spouse and I agree on everything, do we still have to go to court in order to get divorced in Illinois?
Yes. Either you or your spouse must appear in court at your final divorce hearing in order to finalize your divorce. NOTE: Both of you have the right to be at that hearing if you want.
4. I don’t want a divorce, but my spouse does! How can I stop my spouse from divorcing me in Illinois?
You can’t. If your spouse wants a divorce, you can make it take longer, or you can make it cost more. But you CAN’T stop it. (Sorry!)
5. How does divorce mediation in Illinois work?
You and your spouse can mediate any or all issues in your divorce. You can also usually go to mediation at any time during your divorce, so long as you and your spouse agree.
During mediation, a trained, independent, neutral mediator will help you and your spouse talk to each other. S/he will also help you resolve whatever issues you disagree about.
If you want, your lawyers can go with you to mediation. ( That’s called “lawyer-assisted mediation.”) Or you can mediate without your lawyers being present.
Even though you mediate your divorce, it is wise to talk to a lawyer BEFORE you mediate. That way you will fully understand your rights and responsibilities BEFORE you agree to anything. (Yes. You need a mediator and a lawyer!)
NOTE: A mediator cannot force you to make an agreement. If you and your spouse don’t agree, then the mediation is said to have “failed” and you and your spouse will then go back to court.
To learn more about divorce mediation, CLICK HERE.
6. Can the court order my spouse and I to go to mediation in Illinois?
In Illinois, a court can ORDER you and your spouse to go to mediation, or you can go to mediation voluntarily. Most often, courts will order you to go to mediation to try to resolve the issues surrounding your children (i.e. your parental responsibilities) before it will allow you to go to trial on those issues.
Depending upon the county in which you live, a limited amount of mediation regarding parenting issues may or may not be provided to you free of charge. If you want to mediate any financial issues in your divorce, you generally have to pay for that yourself.
NOTE: Even though a court can order you to attend mediation, it can’t order you to make an agreement. If you don’t reach an agreement in mediation, your mediation will fail and you have to go back to court. Then the judge will decide your divorce for you.
7. I’ve heard about Collaborative Divorce, but I don’t really understand what that means. What is an Illinois Collaborative Divorce?
Collaborative Divorce means much more than that you and your spouse want to divorce amicably, or collaboratively.
Collaborative Divorce is a specific type of divorce process that is designed to help you and your spouse resolve all of your divorce issues in a conference room instead of a courtroom.
In Collaborative Divorce specially trained divorce professionals, including divorce lawyers, coaches, child specialists, and neutral divorce financial professionals, help you and your spouse focus on what matters most to you and end your marriage respectfully.
The hallmark of a Collaborative Divorce is that everyone (including the divorce professionals) signs an agreement in the beginning of the divorce that says that, if the Collaborative Process doesn’t work, all of the professionals will withdraw from the case. The divorcing couple then has to hire new professionals and start all over again if they want to go to court.
The purpose of this agreement is to make sure that everyone is incentivized to stay at the table and negotiate in good faith. (Normally, lawyers make more money when you fight. In a Collaborative Divorce, if you end up fighting in court, the Collaborative lawyers lose you as a client!)
In 2017, Illinois passed the Collaborative Practice Act. This law governs how Collaborative Divorce in Illinois is done.
NOTE: To learn more about Collaborative Divorce CLICK HERE.
8. How do I complete my Illinois Financial Affidavit?
Theoretically, everyone who wants to get divorced in Illinois needs to fill out an Illinois Financial Affidavit. This affidavit is essentially a budget and a balance sheet.
In this Affidavit, you will have to list information about how much money you and your spouse make, what you spend, what you own and what you owe.
You can get a copy of the Illinois Financial Affidavit online. All counties in Illinois now use the same Financial Affidavit.
Filling out the Illinois Financial Affidavit can be confusing! Illinois Legal Aid Online has a fabulous website that will help you complete your Financial Affidavit. CLICK HERE to check it out.
9. I want to divorce someone who lives outside of Illinois. What can I do?
In order to be able to get a divorce in Illinois, either you or your spouse must have lived in the state of Illinois for at least 90 days before one of you filed for an Illinois divorce.
If you live in Illinois, but your spouse does not, you can still file for divorce in Illinois. But you will have to serve your spouse with a Summons and a copy of the Petition for Dissolution of Marriage that you have filed in the place where your spouse lives. The best way to do that is to talk to a lawyer in your area about how to do it properly.
If you’re trying to get your spouse served with a Summons outside of the state of Illinois and you don’t have a lawyer, try talking to someone at your County Sheriff’s department. They should be able to tell you the steps you need to take to make that happen.
Illinois Divorce Law
1. My spouse cheated on me. How do I get a divorce based upon adultery in Illinois?
Illinois no longer allows divorces based upon anything other than irreconcilable differences. So, you can’t get a divorce based upon adultery in Illinois.
2. My spouse has a mountain of student loan debt from before we were married. Will I be responsible for paying for my spouse’s student loan debt in my Illinois divorce?
Debt that your spouse incurred before you were married is generally your spouse’s separate debt. So, technically, your spouse’s premarital student loans should be your spouse’s responsibility after your divorce.
3. In Illinois, am I entitled to get part of my spouse’s retirement account in our divorce?
All property that you or your spouse acquired from the date of your marriage forward is generally marital property. So, if your spouse contributed to a retirement account, or participated in a pension plan during the course of your marriage, that part of your spouse’s retirement or pension plan is likely marital property.
Marital property is divided equitably in a divorce. (See the next question and answer, below.)
There are some exceptions to the rule, though. Any property your spouse got through a gift or inheritance, even during your marriage, is usually considered to be your spouse’s separate, non-marital property. (So, if your spouse funded his/her IRA with inherited funds, then that IRA may NOT be marital property.)
Also, if you and your spouse entered into a valid pre-marital agreement that said that money in a retirement account is NOT to be considered as marital property, then the money in your spouse’s retirement account may be non-marital.
The issue of whether property is marital or non-marital can be complicated. If you have questions about this, it’s best to consult with a lawyer in your area.
4. How is property divided in an Illinois divorce?
In Illinois, property in a divorce is divided equitably. It is not necessarily divided equally.
What is “equitable?” The answer is: It depends. It depends on all of the facts and circumstances in your case, as well as what the court thinks is “fair.” (NOTE: What the court thinks is equitable may be very different from what you think is equitable! To figure out what is equitable in your divorce, it’s best to talk to a divorce attorney in your area.)
Illinois Divorce Lawyers
1. Can I get a divorce without a lawyer in Illinois?
Yes, you can. The better question is: Should you get a divorce without a lawyer? (In most cases, the answer to THAT question is No! … at least, not if you have anything you don’t want to lose.)
2. My spouse and I both want an amicable divorce. Can we both use the same Illinois family lawyer to handle our divorce?
No lawyer, in Illinois or any other state, can represent BOTH you and your spouse in the same case. When you hear people say, “We used the same lawyer,” what that really means is the lawyer represented one of them and the other one went without a lawyer.
3. Can I get my spouse to pay my divorce lawyer’s fees in Illinois?
Yes, but it’s not always easy. Years ago, Illinois adopted laws aimed at “leveling the playing field.” Those laws allowed one spouse to get attorney’s fees from the other spouse, both during the divorce and at the end of the divorce.
But NO ONE wants to pay their spouse’s attorney’s fees in a divorce! So, most people fight having to pay their spouse’s fees. In that case, it is up to the judge in your case to decide whether your spouse has to pay your attorney’s fees or not.
4. If my spouse and I are mediating our Illinois divorce, do we still need lawyers?
Yes! Mediators are neutral. They can’t give you legal advice, even if they are lawyers!
In most cases, mediators won’t draft all of your legal documents either.
At the end of your mediation, the mediator will usually write up everything you agreed to into a mediated settlement agreement. That agreement may form the basis for your Marital Settlement Agreement, but it may not contain every single provision your Marital Settlement Agreement needs. What’s more, your Settlement Agreement is only one of the documents you will need in your divorce.
A mediator will also not file your documents in court for you. A mediator will not appear in court with you. Those are things that only an Illinois divorce lawyer can do for you.
5. How do Illinois Family Law lawyers charge?
Most Illinois family lawyers charge by the hour for the work they do. They take a retainer from you upfront. A retainer is like a deposit you pay them. Then the lawyers bill by the hour against the retainer.
When your retainer has been used up, your Illinois divorce lawyer will either ask you for another retainer or will expect you to pay your bill monthly when it is due.
Some attorneys will charge a flat fee for a simple uncontested divorce. But, if you later start to fight, you will also start to pay that lawyer by the hour for his/her time.
Divorce and Children in Illinois
1. My spouse and I are getting a divorce, but we agree on everything regarding our kids. We both want what’s best for them. Do we still have to go to Parenting Class?
Yes! All divorcing parents in Illinois have to attend a parenting education class. Those classes are held both in-person and online.
It is VERY important that you take the parenting class that YOUR COUNTY requires. If you take the wrong parenting class, you may have to go back and take the right one before you can get divorced! Here are links to some Illinois Parenting Classes:
For parenting classes in any other county, check with your local clerk of the court or an attorney in your county to find the right parenting class for you.
2. In an Illinois divorce, will my children get a say in who they want to live with? If so, how old do they have to be before they can decide who they want to live with?
Children of divorcing parents do not get to decide which parent they will live with until they are 18 years old. Then they are legally adults and can live where ever they want.
Courts do not want to put children in the middle of their parents’ divorce. That’s why they don’t allow children to decide which parent they want to live with.
Sometimes, in rare cases, a judge will get a child’s input about where s/he wants to live. But, even if a judge does that, s/he will usually make it clear to the child that, even though he is asking for the child’s opinion, it is the JUDGE’S decision where that child will live after the divorce.
3. What happens in Illinois if my partner and I never married but we have kids together? Are the rules for unmarried parents in Illinois different than they would be for divorcing parents?
The rules surrounding parental responsibilities, parenting plans, child support, and parenting issues are the same for unmarried parents as for divorcing parents.
4. How do I calculate child support in Illinois?
Like in other states, Illinois child support is based upon a guideline calculation. The calculation will apply in most cases. However, it is possible, in certain circumstances, to set child support at an amount greater than or less than the guideline amount.
Deviating from the guideline amount of child support, however, is RARE! If you want to do it, you must have a very good reason, and very specific reasons for doing it AND you must get your judge to agree that there is a good reason for deviating from the guidelines.
NOTE: The fact that you may be unemployed, or don’t have a lot of money, is usually NOT a good reason for deviating from the child support guidelines!
Before July 1, 2017, Illinois’ child support calculation was based upon a percentage of the payor’s net income. Now, child support is based upon a more complicated calculation that takes into account BOTH parents’ net incomes.
The calculation also takes into account the amount of time that each parent spends with a child. Right now, if a parent spends at least 146 overnights with their children, then the amount of child support that parent would otherwise pay is reduced due to the amount of time the parent spends with the kids.
To know how much YOU will have to pay, or may receive, in child support, it’s best to consult with an attorney. Applying the child support guidelines can be more complicated than you think.
If you want to get a rough idea of what your child support might end up being, you can check out this Illinois child support estimator.
5. How does child custody work in Illinois?
Illinois has abolished the term “custody.” It has replaced the concept of “child custody” with “Parental Responsibilities.”
6. What are “Parental Responsibilities” in an Illinois divorce?
Divorcing Illinois parents have five areas of responsibility when it comes to their children:
- Decision making regarding:
- Health care;
- Religion; and
- Extra-curricular activities; and
- Parenting time (formerly known as “visitation.)
Parents can either have joint decision-making responsibility for their kids for each of the areas noted above, or one of them can have decision-making responsibility for that area. (So one parent could make decisions about education and the other could make them about health care, etc.)
Both parents are entitled to have parenting time with their children. In Illinois, the law recognizes that it is in the children’s best interest to have a relationship with, and spend time with, both parents. How parenting time is configured, however, is different in every case.
7. Is there a standard visitation schedule in Illinois divorces? Do fathers only get every other weekend and one weeknight per week with their kids?
There is no “standard” parenting schedule that applies in every case. There is no law or rule that determines how much time fathers or mothers get to spend with their kids after a divorce.
In most cases, parents see their children based upon a schedule that they agree upon. If the parents can’t agree on a parenting time schedule, then the court will determine the schedule upon which each parent will see the kids.
The court makes its parenting time determination based upon what the judge finds to be in the best interest of the children. What is in the children’s “best interest” depends on the facts and circumstances of every case.
8. What happens if my ex doesn’t pay child support in Illinois?
In general, child support orders are enforced in court. So, if your ex isn’t paying child support, you need to go back to court and ask the judge to find your ex in contempt of court.
If your ex is found to be in contempt of court, the judge can impose penalties on your ex for not paying the support s/he was supposed to pay. The judge can also put your ex in jail until s/he comes up with at least some portion of the back child support that is due. The judge can also order your ex to pay the attorney’s fees you incurred in having to chase him/her down for the child support payments that were due.
Enforcing child support orders can be a long and tedious process. It takes time and it costs money. However, the State’s Attorney in your county may represent you in a child support collection case for free. Contact your local State’s Attorney’s Office if you are interested in that service.
NOTE: The ONLY thing that the State’s Attorney will represent you on is child support enforcement. If you want to argue with your ex about any issue other than child support, that’s on you.
9. What is the “Right of First Refusal,” and do I need this in my Parenting Plan?
The “Right of First Refusal” is a parent’s right to to be asked to babysit for his/her child BEFORE anyone else can do so. For example, if it’s your parenting time with your kids, and you want to go out for a few hours, with the right of first refusal you would have to call your ex and ask him/her to babysit before you ask anyone else. If your ex says, “No,” THEN you can ask someone else to watch them.
Every divorcing Illinois parent needs to deal with the right of first refusal in his/her parenting plan. If you have older children, you may not want or need to have a right of first refusal for your kids. But, because Illinois law requires you to deal with this issue, you at least have to say that you and your ex agreed NOT to make this part of your parenting plan.
While dealing with the right of first refusal in an Illinois divorce is required, the WAY you deal with that right can vary greatly.
For example, some parents want to have the right to babysit their kids if the other parent is gone for an hour or more. Others don’t want the right to kick in unless one of them will be gone overnight. Still others may want grandparents to be considered when dealing with this right. (i.e. You only get the right to babysit the kids if neither their other parent nor their grandparents are available to stay with them.) This gives grandparents a greater opportunity to spend time with their grandchildren.
How you configure the right of first refusal in your divorce is up to you. If you and your spouse can’t agree on the terms of this right, however, the court will decide it for you.
Alimony in Illinois
1. Will I get alimony if I divorce in Illinois?
Whether you will get maintenance/alimony in Illinois depends first upon whether your case is one in which maintenance is appropriate. To see a list of factors that determine whether maintenance may be appropriate in your case, CLICK HERE.
2. How will the new Illinois maintenance laws affect me?
If maintenance is appropriate in your divorce then the court applies a guideline formula to calculate how much spousal support should be paid, and how long it should be paid for.
The Illinois maintenance formula used to be based upon you and your spouse’s GROSS income. Starting January 1, 2019 the maintenance formula became based upon you and your spouse’s NET income.
To get more information about how the Illinois maintenance formula works (i.e. how long maintenance lasts and how much should be paid) CLICK HERE.
How this new formula will affect you depends on how much money you and your spouse make, as well as all of the other facts and circumstances of your case.
To get a more precise idea about how much maintenance you might have to pay, or might receive, in your case, consult with an Illinois divorce financial planner or accountant.
Other Illinois Family Law Questions
1. How much does a divorce cost in Illinois?
The answer is: It depends.
The biggest part of your divorce costs will usually be your attorney’s fees. Attorneys charge by the hour for their time. The more you fight, the more hours your attorney will have to spend fighting, so the more your divorce will cost.
Also, the more time your lawyer has to spend sorting through your financial situation, the more you will pay your lawyer. So if your financial situation is complicated, your divorce will likely be more expensive than it would if your finances were simple.
Other things that drive up the cost of divorce are expert fees. If you have to pay a forensic accountant, or a business evaluator, or a child psychologist, their fees will also make your divorce cost more.
2. How long will my Illinois divorce take?
Again, the answer is: It depends.
The more you and your spouse fight, the longer your divorce will take. (And, if you fight, your divorce can take a LONG time!) But, there are also other things that will drag out your divorce.
If you need to get your business or real estate appraised before you can resolve your divorce, that usually makes your divorce take longer. If you have to get a psychologist involved in your divorce because of disputes about your kids, that usually makes your divorce take longer.
Another thing that can drag out your divorce is the discovery process. If your spouse won’t produce financial documents, and you have to send subpoenas to banks, credit card companies, etc. to get the information you need, that can add enormous amounts of time to your divorce, too.
3. How do you deal with health insurance when you divorce in Illinois?
Each spouse is generally responsible for getting his/her own health insurance after a divorce. In some cases, one spouse can agree to pay for another’s health insurance premiums for a certain period of time after a divorce. The payment of those premiums may or may not be considered to be “maintenance.”
If a couple gets their health insurance through one spouse’s employer, it may be possible for the other spouse to get continued coverage through COBRA. That coverage can last up to 36 months after a divorce. However, the premiums are usually not cheap!
If one spouse wants to continue to keep the other on his/her health insurance after the divorce, you need to check with the health insurance provider to see if that’s allowed. Most health insurers do NOT allow divorced spouses to maintain the same health insurance.
As for the kids, in Illinois, one parent or the other will generally be required to get health insurance for the children. One or both of the parents may be required to contribute toward the payment of the kids’ health insurance premiums.
4. What is a legal separation in Illinois?
Unlike a divorce, a legal separation doesn’t end your marriage. It can, however, divide marital property between spouses IF BOTH SPOUSES AGREE. If the spouses don’t agree, their property can’t be divided in a legal separation.
In a legal separation, a court can order one spouse to pay maintenance (support) to the other.
In the past, there were two main reasons people filed for a legal separation instead of a divorce:
- So that they could keep their spouse on their health insurance;
- For religious reasons.
Today, many health insurers will not continue to afford coverage to a spouse is legally separated.
Because of its limited scope, very few people file for a legal separation in Illinois today.
5. Does Illinois recognize common law marriage?
In a word, “No.”