Illinois Ground Rules for Divorce and Annulment

In Illinois, divorce is officially called a “Judgment for Dissolution of Marriage” – a term used by the courts and all legal papers.

Prior to 1984, Illinois required residents to show “fault” (such as adultery or cruelty) as a basis for proving marriage breakdown. Today, the Illinois Marriage and Dissolution of Marriage Act allows couples to file for divorce using either fault or no-fault grounds. The no-fault ground is “irreconcilable differences”; to use this ground, you must be able to prove that:

1. irreconcilable differences have caused the irretrievable breakdown of your marriage;
2. past efforts at reconciliation have failed;
3. future efforts at reconciliation would be both impracticable and not in the best interests of your family.

When using irreconcilable differences, there is normally a two-year waiting period during which the parties must live separate and apart before their divorce is granted. However, marriage breakdown is now indicated and divorce can occur if the husband and wife have been separated for as little as six months – if both parties agree and sign a special waiver form.

Alternately, you may use one of the following fault grounds to obtain a divorce. To do so, you must be able to prove that your spouse:

• was at the time of your marriage and continues to be impotent;
• had a living wife or husband at the time of your marriage (committed bigamy);
• committed adultery during your marriage;
• willfully deserted you for at least one year;
• has been guilty of habitual drunkenness or drug abuse for two years;
• has physically or mentally abused you, or tried to kill you;
• has been convicted of a felony;
• has infected you with a sexually transmitted disease.

Of the fault and no-fault options, the separation period is the most straightforward and easiest to prove. It’s possible to deem yourselves as “separate and apart while” living within the same home, although this is more difficult to prove. You must be living entirely independent lives – each doing your own cooking, laundry, and home maintenance for example – and of course not sharing the same bed. Generally speaking, choosing a fault rather than a no-fault ground probably won’t have much impact on the outcome of your divorce in terms of property division or spousal support. It might affect child custody or visitation, however. Discuss the pros and cons with your lawyer before deciding whether to use a fault ground for your divorce.

Annulment

In a divorce, the court declares the marriage contract broken; in an annulment, the court says that there never was a marriage. Annulment (known as “Declaration of Invalidity of Marriage” in Illinois) is more difficult to prove – and much rarer – than divorce. To go this route, you will need to speak to an Illinois divorce attorney. If you want an annulment for religious reasons, consult with your priest, minister, or rabbi as well. In Illinois, there are four grounds for a Declaration of Invalidity:

1. At the time of the marriage ceremony, one of the parties:
   • lacked the capacity to consent to the marriage because of
     • mental incapacity or infirmity (psychosis, dementia, or mental retardation, for example)
     • the influence of alcohol or drugs
   • was induced to enter the marriage by force, duress, or fraud regarding the essentials of the marriage.
2. One party does not possess the physical ability to consummate the marriage by sexual intercourse, and the other party did not know about the incapacity at the time of the marriage.
3. One or both parties were underage and did not have the consent of their parents or guardians, or judicial approval.
4. The marriage is prohibited. Examples of a prohibited marriage include:
   • one party was already married at the time of the marriage ceremony,
   • the parties are close blood relatives (siblings, uncle, and niece, aunt and nephew, first cousins, etc.).

Documentation

You’ll need to provide your divorce lawyer with the following documentation in order to proceed with your dissolution. Start gathering everything together as soon as possible so that you can find out what might be missing and submit any requests for duplicates.

Personal Data

• Full addresses and phone numbers of both parties.
• Full names, birth dates, and addresses of all children of the marriage, their school, and grade.
• Information about any prior marriage of either spouse, including a certified copy of the divorce decree.
• A copy of any domestic contracts (e.g. a prenuptial agreement).
• Dates and particulars about any previous separations attempts at reconciliation, or marriage counseling.

Financial Data

• Your previous year’s income tax return (and from two prior years, if available), and any related data from the IRS.
• Information about your current income (e.g., a current payslip).
• A list of substantial assets and liabilities of both spouses.
• Loan applications, broker’s statements, stock certificates, insurance.
• Most recent statement of all accounts and credit cards.