The legal issues involved in ending a marriage
If a married couple decides to divorce, there are a number of legal steps the couple must take before the divorce can be granted.
The first is to file a petition for divorce. In Illinois, there is no waiting period to file, as long as one of the spouses legally resides in the state on the day of the filing. The actual divorce, however, can be granted only if the person has resided in Illinois for 90 days before the judgment. After a petition is filed, temporary orders often will address "maintenance" (formerly called alimony), visitation and child support. These orders may remain in effect until the divorce is final.
Before a judge will grant a divorce, a party must prove grounds. Typically, these include irreconcilable differences, mental cruelty, physical cruelty, habitual drunkenness or a drug habit, adultery, impotence and imprisonment.
In a case based on irreconcilable differences, which some people call no fault, the parties must show that there is a breakdown in the marriage, that they have been living separately for two years (unless the case settles and the parties sign a waiver of the requirement, in which case only a six-month separation is required), and that all efforts to reconcile have failed and further efforts will be futile.
Regardless of the grounds, money and property must be divided or awarded on an "equitable basis," regardless of who is at fault. Even if one spouse actually did something to cause the divorce, neither spouse is "punished" in the financial judgment.
Although most couples who are divorcing disagree about certain issues, these disputes usually are resolved through negotiation and advice from lawyers and a judge.
Among the issues that must be settled before the divorce can be granted are the following:
- division of property - real estate, investments, money;
- division of debts;
- whether or not one person will have to pay maintenance to the other, and if so, how much and for how long;
- if there are children, what the custody and visitation arrangements will be; and
- the financial obligations each person will have to the children.
If the parties do not reach an agreement, a trial will be held. Sometimes, it can take several months to a year before a trial date can be set.
Once an agreement is reached, divorce documents will be drawn up, signed by both parties and filed with the state. After the divorce is granted, the parties are required to abide by the guidelines set forth in the final divorce papers.
Note: This information was prepared as a public service by the Illinois State Bar Association and is a joint project with the Illinois Press Association. Its purpose is to inform citizens of their legal rights and obligations.
© Illinois State Bar Association
If you have questions about the application of the law in a particular case, consult your lawyer. The law is constantly changing. Information on this site or any site to which we link does not constitute legal advice.