Illinois divorce guide: process, requirements, and laws

Illinois threw out its old divorce law on January 1, 2016 and most of what people still repeat about it stopped being true that day. There is no fault. There is no two year separation. There is no custody, at least not by that name.

What replaced it is a system that runs on formulas for the money and on a written plan for the children, and it moves faster than almost anyone expects once both of those are settled. This guide works through it from the Illinois statutes and the Supreme Court's own forms, and hands off to a fuller chapter each time.

How does divorce work in Illinois?

Four rules set the shape of it:

• Ninety days and one spouse is enough. Section 401(a) of the Illinois Marriage and Dissolution of Marriage Act asks that one of you has lived in Illinois, or been stationed here in the armed services, for 90 days before the case starts. That is the shortest residency requirement of any large state.

• Irreconcilable differences is the only ground. Adultery, desertion and cruelty were all repealed. Nobody has to prove anything about the other spouse's behavior, and nobody gets a better property split for being wronged.

• Equitable, which does not mean equal. The court assigns each spouse their non-marital property, then divides the marital property in just proportions on twelve listed factors, without regard to marital misconduct. There is no 50/50 starting point.

• Filing does not freeze your money. Illinois has an automatic stay that takes effect on service, and it stops two things: abuse and hiding a child. It says nothing at all about bank accounts.

Everything below is the detail.

Step 1: Can you file for divorce in Illinois?

How long do you have to live in Illinois to file for divorce?

Ninety days, and only one of you has to clear it. The clock runs to the day the case is commenced or to the day the court makes the finding, whichever the case needs, and military members stationed in Illinois count as residents for this purpose.

County is a separate question with a much softer answer. You file where either spouse lives, and an objection to venue dies if your spouse does not raise it by the time their response is due.

→ Complete guide: Illinois divorce residency requirements and where to file

What are the grounds for divorce in Illinois?

One: irreconcilable differences that have caused the irretrievable breakdown of the marriage. The court also has to find that attempts at reconciliation failed or would be impracticable and not in the family's best interests.

If you have lived apart for six months, the statute gives you an irrebuttable presumption and the question stops being arguable. Under six months you have to prove the breakdown, which in practice is a short conversation with the judge.

→ Complete guide: Illinois grounds for divorce and the six month separation rule

How long does a divorce take in Illinois?

The court's own instruction packet says six months to two years. The floor is set by the calendar rather than by any waiting period: Illinois has none.

What actually drives the timeline is whether there are children, since a case with children picks up a 90 day case management conference, a 120 day parenting plan deadline, mediation and a parenting class before anyone talks about a trial date.

→ Complete guide: How long an Illinois divorce takes and what happens at each stage

Step 2: How do you file for divorce in Illinois?

How do you file for divorce in Illinois?

You file a verified Petition for Dissolution of Marriage with the circuit clerk in the county where you or your spouse lives, and a Certificate of Dissolution with it. The Supreme Court publishes free statewide forms in a with-children set and a no-children set, and every Illinois court has to accept them.

There is no statewide filing fee. Each county board sets its own, inside caps written into the Clerks of Courts Act, and the real numbers run a little over $300 in most counties.

→ Complete guide: How to file for divorce in Illinois, step by step

How do you serve divorce papers in Illinois?

Usually by sending the summons and petition to the sheriff in the county where your spouse lives. If your spouse will sign and file an Appearance, you skip service entirely, which is the cheapest and fastest path when you are on speaking terms.

The summons has a 30 day shelf life from the day it is issued, and your spouse has 30 days from service to appear or answer.

→ Complete guide: Serving divorce papers in Illinois and the 30 day rules

Does filing for divorce in Illinois freeze bank accounts?

No, and this is the single most expensive misunderstanding in Illinois family law. The dissolution action stay under section 501.1 restrains abuse and restrains hiding a child from the other parent. Its old financial restrictions were deleted and the subsections now read "(Blank)."

If you want the accounts frozen, somebody has to go ask a judge.

→ Complete guide: The Illinois dissolution action stay and how to actually freeze assets

Step 3: How is money divided in an Illinois divorce?

How is property divided in an Illinois divorce?

The court sorts marital from non-marital, hands each spouse their non-marital property, and divides the rest in just proportions. Almost everything acquired during the marriage is presumed marital, and beating that presumption takes clear and convincing evidence.

The interesting fights are at the seam: money that started out separate and got mixed with marital money, a business one spouse built while married, and dissipation, where one spouse spent marital money on something outside the marriage after it started breaking down.

→ Complete guide: Illinois property division, commingling, and dissipation

Do you have to file a financial affidavit in an Illinois divorce?

Only sometimes, which surprises people who have been through a divorce in another state. Illinois has one statewide financial affidavit, and it is mandatory when somebody asks for temporary support, temporary maintenance or interim attorney fees, or when a local rule or the judge orders it.

The rest of the financial picture comes out through ordinary civil discovery, and lying on the affidavit carries a penalty the statute writes in mandatory terms.

→ Complete guide: The Illinois financial affidavit and how divorce discovery works

How is spousal maintenance calculated in Illinois?

By formula, when your combined gross income is under $500,000 and the payor has no support obligation from a prior relationship. Take 33 1/3 percent of the payor's net income, subtract 25 percent of the payee's net income, and cap the result so the payee does not end up with more than 40 percent of the combined net.

Duration is the length of the marriage multiplied by a factor that climbs from .20 to .80 as the marriage gets longer, and at twenty years the court can order maintenance for the length of the marriage or indefinitely.

→ Complete guide: Illinois spousal maintenance formula, duration, and modification

Step 4: How do children work in an Illinois divorce?

Who gets custody in an Illinois divorce?

Nobody, because Illinois stopped using the word. What the court allocates now is significant decision-making responsibility, split across education, health, religion and extracurricular activities, and parenting time, which is the schedule.

Both parents are presumed fit, and parenting time can only be restricted on a finding of serious endangerment. Every parent has to file a proposed parenting plan within 120 days.

→ Complete guide: Illinois parental responsibilities, parenting time, and the parenting plan

How is child support calculated in Illinois?

On the income shares model, which Illinois adopted in 2017. Both parents' net incomes are added together, the combined figure is looked up in a schedule the state publishes, and the resulting basic obligation is split between the parents in proportion to what each earns.

If each parent has 146 or more overnights a year, the whole calculation changes and the obligation gets multiplied by 1.5 before the offset.

→ Complete guide: Illinois child support guidelines, income shares, and college expenses

Step 5: Which kind of Illinois divorce are you in?

What is an uncontested divorce in Illinois?

One that ends at a prove-up instead of a trial, either because you agreed on everything or because your spouse never showed up. Your written settlement agreement binds the judge unless it is unconscionable, and it beats anything either of you says on the stand at the prove-up.

→ Complete guide: Uncontested divorce in Illinois and how a prove-up works

What is a joint simplified dissolution in Illinois?

The fastest divorce Illinois offers, and the hardest to qualify for. No children, married eight years or less, no real estate, marital property under $50,000, combined income under $60,000, neither spouse over $30,000, maintenance waived permanently, and a written agreement already dividing everything worth more than $100.

Clear all eleven conditions and you both show up once and walk out divorced.

→ Complete guide: Joint simplified dissolution in Illinois and who qualifies

What happens in a contested divorce in Illinois?

A trial that gets split in two. The court hears whether irreconcilable differences caused the breakdown first, then either gives you more time to settle the rest or moves straight into the money and the children.

Once proofs close, the judge has 60 days to enter judgment, or 90 with a written finding of good cause.

→ Complete guide: Contested divorce in Illinois, from discovery to judgment

Is mediation required for divorce in Illinois?

For the children, effectively yes. Every judicial circuit has to run a mediation program, and the court is directed to order mediation on parenting issues unless it finds an impediment. Parents also have to complete a parenting education class of at least four hours.

For money, mediation is voluntary, and it is where most Illinois divorces are actually resolved.

→ Complete guide: Illinois divorce mediation and settlement agreements

What changes in a high-asset Illinois divorce?

Once there is a business, a deferred compensation plan or a separate estate that got tangled with marital money, the case becomes an argument about classification, tracing and valuation dates. Illinois presumes stock options and restricted stock are marital whether or not they have vested and whether or not anyone can price them yet, which turns the allocation into its own fight.

Illinois also runs its dissipation rule on a hard clock, and the lookback is measured in years, not months.

→ Complete guide: High-asset divorce in Illinois: business valuation, tracing, and dissipation

Where should you start with an Illinois divorce?

If you are still deciding:

1. Confirm one of you clears the 90 day residency rule, because that is the only gate on the courthouse door

2. Work out where your six month separation date falls, since it decides whether grounds are a formality or a conversation

3. Read how the property rules sort what you own before you agree to any split

If your case is already filed:

• Do not assume the dissolution action stay protects your money, because it does not

• If there are children, calendar the 120 day parenting plan deadline now, and sign up for the parenting class

• Start pulling statements for the financial affidavit before anyone demands it, because the affidavit is only as good as the documents behind it

Illinois gives you arithmetic for the money and a written plan for the children, and it will not end the marriage until both exist on paper. The cases that finish quickly are the ones where somebody did the financial homework early.