Getting a divorce can be an unsettling process. Before you take any action, it is in your best interest to understand your rights as well as the divorce process in general. You may wish to consult an attorney, especially if you believe the divorce will be contested (i.e. you and your spouse cannot agree on the terms of the divorce).
This page explains who can get divorced in Illinois, the legal reasons to file for divorce, and what a judge may order as part of your divorce.
Who can get divorced in Illinois
You or your spouse must be a legal resident of Illinois (or stationed in Illinois while a member of the armed services) for at least 90 days prior to filing your case or not less than 90 days before the final judgement is entered. You should file for divorce in the county in which either you or your spouse reside.
Grounds for divorce in Illinois
Illinois is a “no fault” divorce state. This means that it is not necessary to prove that either spouse did anything wrong to cause the divorce. A person asking for divorce only needs to claim that the parties have “irreconcilable differences” (you and your spouse cannot get along), that past efforts at reconciliation have failed and future efforts would be impracticable and not in the best interests of the family.
What will be decided in the divorce
There are many decisions to be made before your divorce can be finalized, like how to divide property and debts, whether maintenance (formerly called alimony) will be awarded, and if children are involved, how to determine parenting time (physical custody), decision making responsibilities (legal custody) and child support. If you and your spouse are able to agree on most or all of these things, your divorce can be finalized quickly. If you cannot, the judge will have to make decisions for you, which can take a while and will involve a lot of time in and out of court. In these cases, it is wise to contact an attorney to help you.
1. Division of Property and Debt
Illinois is a separate property state.
- The first step in dividing property and debts in Illinois is determining what is marital property and what is not. Marital property includes most assets and debts you acquired with your spouse during marriage. Property is separate if you owned it before the marriage or acquired it during the marriage by gift or inheritance. The designation between marital and separate property is not always clear. For example, if you bought your home before the marriage but your spouse paid towards the mortgage, this may be considered marital property. These situations are complex and can require the assistance of an attorney.
- The next step is assigning monetary value to the property. Based on this value, property and debts will be distributed between you and your spouse equitably. The amount of money each spouse makes may be a factor in how property and debts are divided. You and your spouse can divide the assets and debts yourself and a judge will review and approve it before finalizing the divorce. If you cannot agree, the judge will make decisions for you.
Maintenance, previously called alimony, can be awarded in some cases. This means one spouse receives ongoing financial support from the other after the divorce. In determining if maintenance is awarded, factors like how long the marriage lasted, each spouse's career and earning potential and one spouse's need for support versus the other’s ability to pay, are considered.
3. Matters involving children
If you and your spouse have children under the age of 18 together, you will need to determine parenting time (formerly called physical custody), decision making responsibility (formerly called legal custody) and child support. Refer to the page on Custody, Paternity & Child Support for more information.
Read more about divorce under Illinois State Statute.
How to get started
If you would like to file for divorce in Winnebago County, and you have children with your spouse, use the Divorce With Children E-Guide to learn more.
If you would like to file for divorce in Winnebago County, and you do not have children with your spouse, use the Divorce NO Children Eguide to learn more.