Unlike divorce, a legal separation does not put an end to the marriage. During a legal separation, a court order outlines the rights and responsibilities of each spouse while they are living apart. Parties remain legally married while choosing to live separate lives. The same issues addressed during the divorce process are also addressed in a legal separation agreement. Division of assets and debts, child custody and child support, visitation schedules and spousal support may be addressed in a legal separation agreement. A legal separation can protect one’s interests until the decision is made to file for divorce. The separation agreement also sets a precedent for the divorce that may follow. If one divorces after a separation and the case goes to court, a judge is likely to assume that since both parties were satisfied with the legal separation agreement, the agreement should carry over to the divorce settlement agreement. For that reason, it is important that one comes to a separation agreement he/she can live with long-term.
While many people see divorce and annulment as two different words for dissolving a marriage, the truth is that there are some distinct differences. A divorce actually terminates a legal marriage whereas an annulment declares that the marriage never legally existed.
Under section 750 ILCS 5/104, an Illinois court shall enter a judgment of dissolution of marriage as long as one of the spouses was a resident of Illinois or was stationed in Illinois while a member of the armed services, and the residence or military presence had been maintained for at least 90 days prior to filing.
Grounds for divorce are:
- natural impotence at the time of the marriage and continuing thereafter;
- bigamy (also a ground for annulment);
- willful desertion or absence from the spouse for the space of one year;
- habitual drunkenness for the space of 2 years;
- gross and confirmed habits caused by the excessive use of addictive drugs for the space of 2 years;
- threatening the life of the other by poison or other means showing malice;
- extreme and repeated physical or mental cruelty;
- conviction of a felony or other infamous crime;
- infecting the other spouse with a communicable venereal disease; or
- irreconcilable differences
To file a divorce under the grounds of "no fault" (irreconcilable differences), a person must allege that (1) the spouses have lived separate and apart for a continuous period in excess of 2 years, (2) irreconcilable differences have caused the irretrievable breakdown of the marriage; and (3) efforts at reconciliation have failed and further attempts at reconciliation would be impracticable and not in the best interests of the family. “Living separate and apart” does not require that the spouses physically live in separate housing, but rather, if the parties reside in the same household, they must live as if they were "separate and apart."
If the spouses have lived separate and apart for a continuous period in excess of six months prior to entry of the divorce judgment, the two year requirement for living separate and apart requirement may be waived if both parties stipulate to that fact in writing.
The most common issues in a divorce proceeding are child custody, child visitation, child support, maintenance (also known as “alimony”), and division of property and debts.
Each divorce matter is unique and has its own set of issues; as a result, it is difficult to determine how long the case will take. However, the Illinois Supreme Court Rules require that all child custody proceedings be resolved within eighteen months after origination of the custody suit.
Illinois, like many other jurisdictions, uses “the best interest” of the child's litmus in determining custody awards. The factors that a court will consider in determining "the best interest” of a child are:
- the wishes of the child's parent or parents as to his custody;
- the wishes of the child as to his custodian;
- the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest;
- the child's adjustment to his home, school and community;
- the mental and physical health of all individuals involved;
- the physical violence or threat of physical violence by the child's potential custodian, whether directed against the child or directed against another person;
- the willingness and ability of each parent to facilitate.
Sole custody grants one parent the legal right and responsibility to make major decisions regarding a child’s welfare, including matters of education, medical care and emotional, moral and religious development. Joint custody awards both parents the legal right and responsibilities to make major decisions “jointly” regarding a child’s welfare, education, medical care and religious development. In a joint custody arrangement, both parents must work together in rendering any major decisions concerning their child(ren).
A parent who is awarded “residential custody” is the parent with whom the child resides for a majority of time in a given year. The parent who does not have residential custody (the non-residential parent) will be awarded visitation or parenting time. Visitation schedules are unique to each family and, therefore, there is no defined schedule that a court implements; each family has its own schedule that accommodates the needs of its members. Commonly however, the non-residential parent will be granted visitation every other weekend, one or two evenings during the week and on alternating holidays and school breaks.
Pursuant to Illinois law, child support is calculated based on the following guidelines:
Number of Children
Percent of Non-Custodial Parent's Net Income
6 or more
Relevant factors for deviations may include but are not limited to:
- The financial resources and needs of the child(ren);
- The financial resources and needs of the custodial parent;
- Standard of living the child(ren) would have enjoyed had the marriage not been dissolved, the separation not occurred, or if the parties had married;
- The physical and emotional condition of the child(ren) and their educational needs; and
- The financial resources and needs of the non-custodial parent.
Net income is the total of all income from all sources, minus the following deductions:
- Federal income tax;
- State income tax;
- Social Security (FICA);
- Mandatory retirement contributions;
- Union dues;
- Dependent and individual health/hospitalization insurance premiums;
- Prior obligations of support or maintenance actually paid pursuant to a court order or administrative order;
- Expenses to repay debts that represent reasonable and necessary expenses for the production of income;
- Medical expenses necessary to preserve life or health; and
- Reasonable expenses for the benefit of the child and the other parent, exclusive of gifts.
If net income cannot be determined, the court shall order support in an amount considered reasonable in the particular case.
For further information, please see our Child Custody and Support FAQs.
Maintenance is financial support provided to a spouse in a divorce proceeding. Other jurisdictions refer to maintenance as “alimony” and the concept is the same. Unlike child support, which is support for the day-to-day expenses for a child, maintenance is aimed at providing support to a spouse. There are various forms of maintenance that may be awarded by a court.
- Temporary maintenance: awarded prior to the parties obtaining a dissolution of their marriage;
- Rehabilitative maintenance: awarded to a spouse usually for a specific period of time which the court believes it will take for him or her to return to the job market and become self-supporting; and
- Reviewable maintenance: maintenance award is reviewed by the court after a specified period of time to determine whether the recipient has become self-supporting, at which time the maintenance award can be modified, extended or terminated.
In determining whether a spouse is to receive an award of maintenance, the court will consider the following factors:
- The length of the marriage;
- The disparity in the earnings of the parties;
- Whether there are children of the marriage and if so, which party will be the residential parent upon a dissolution of marriage;
- Whether one spouse has given up career opportunities due to the marriage;
- The age of the parties;
- The health of the parties;
- Each party's ability to acquire income and assets in the future; and
- The standard of living established during the marriage.
In Illinois, each spouse is awarded his/her non-marital assets and liabilities. All property acquired during a marriage is presumed to be “marital” property unless is there is a showing made by a party to find otherwise. There is a common misconception that property/debt in Illinois is divided equally. A marital estate and marital debt(s) are equitably distributed between the parties, without regard to marital misconduct. In determining what qualifies as an equitable distribution, the court considers the following factors:
- The contribution of each party to the acquisition, preservation, increase or decrease in value of the marital or non-marital property, including the contribution of a spouse as a homemaker or to the family unit;
- The dissipation by each party of the marital or non-marital property;
- The value of the property assigned to each spouse;
- The duration of the marriage;
- The relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children;
- Any obligations and rights arising from a prior marriage of either party;
- Any premarital agreement of the parties;
- The age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
- The custodial provisions for any children;
- Whether the apportionment is in lieu of or in addition to maintenance;
- The reasonable opportunity of each spouse for future acquisition of capital assets and income; and
- The tax consequences of the property division upon the respective economic circumstances of the parties.
Generally, the answer would be “no.” Under section 750 ILCS 5/503, if property was acquired during the marriage, there is a presumption that the property is marital. The exceptions to this rule are:
- Property acquired by gift, legacy or descent;
- Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent;
- Property acquired by a spouse after a judgment of legal separation;
- Property excluded by valid agreement of the parties;
- Any judgment or property obtained by judgment awarded to a spouse from the other spouse;
- Property acquired before the marriage;
- The increase in value of property;
- Income from property.
Yes. A spouse will be entitled to a portion of any retirement benefit that accrued during the marriage.
The short answer is “no.” Social security benefits are federally based and, therefore, are allocated by the Social Security Administration. Under federal law, if a spouse is divorced after being married for more than ten years, that spouse may collect retirement benefits on a former spouse’s social security payment benefit schedule. The person seeking to acquire such benefits must be at least 62 years old and the person’s former spouse must be eligible or is currently receiving social security pay benefits. The benefits that an ex-spouse is entitled to receive are at the amount of 50% of the former spouse’s benefits. The exception to this rule is that if the spouse seeking such benefits remarries, that will terminate the right to any recovery.