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The Basics of No Fault Divorce in Illinois

no fault divorce, fault divorce, reason for divorce, Illinois divorce lawyer, divorce attorneyDivorce can be a difficult and emotional process. Property is separated, child custody is decided, and the two spouses go their separate ways.

Some states' divorce statutes require a party to plead grounds for a divorce (in other words, a basis for the court to grant a divorce), such as mental or physical cruelty, attempted murder, adultery, desertion or abandonment, drug addiction, or habitual drunkenness. However, in many other states, including Illinois, a party is allowed to ask the court for a divorce without providing a substantial basis for it. This is known as proceeding under the grounds of “irreconcilable differences,” and is commonly referred to as a no-fault divorce. Using irreconcilable differences as a means to be granted a divorce, however, is more complex than simply asking for a no-fault divorce.

Requirements of a No Fault Divorce

Illinois statute 750 ILCS 5-401(2) states that in order to get a no-fault divorce, at least one spouse must be a resident of the State of Illinois for at least 90 days, and the spouses must be separated (though not necessarily physically) from each other for at least two years. The statute does provide, however, that if both parties agree, in writing to the divorce, then they need only be separated for a period of six months (though it should be noted this is not a stringent standard, assuming both parties agree). Further, the parties must state that they have made efforts to work out their problems and reconcile, but that their efforts have failed and further efforts to reconcile would be ineffective. If the parties agree to the divorce, neither must describe any specific behavior of the other spouse to “prove” irreconcilable differences; if one spouse does not agree to the divorce, however, there may need to be testimony as to the breakdown of the marriage or the bad actions of that spouse.

The Divorce Process in Illinois

Once a couple has fulfilled the above requirements, they must file the petition for dissolution stating irreconcilable differences as the grounds for the divorce in their local circuit court. Once the process begins, a typical divorce in Illinois will have three phases:

  • Phase one is known as the temporary phase: this is an informal phase in which attorneys for the parties may come to temporary agreements regarding support, child custody, visitation, and other matters. Not every divorce goes through this phase, however; many divorces are finalized without any temporary orders having been entered.
  • Phase two is known as the discovery phase: this phase is when the parties identify their contested issues. This typically begins right away, and will be ongoing throughout the divorce.
  • Phase three is known as the resolution phase: in this phase, the court hears any arguments regarding the parties' contested issues, and the court enters final judgment on the dissolution. This is also when orders for property disbursement, child and spousal support, as well as custody and visitation are finalized.

Contact a Divorce Attorney in Illinois

Whether proceeding on irreconcilable differences or fault-based grounds, divorce is never an easy process. Having a skilled attorney can make the divorce process much smoother and easier to understand as well. The dedicated attorneys at Mirabella, Kincaid, Frederick & Mirabella LLC are ready to help you move forward from your relationship and start a new chapter in your life; contact us today for a free consultation.

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From our law office in Wheaton, IL the family law and civil litigation law attorneys of Mirabella, Kincaid, Frederick and Mirabella, represent businesses and individual clients throughout the western suburbs of Chicago, Illinois including Wheaton, Naperville, Oak Brook, Glen Ellyn, Carol Stream, Lombard, Downers Grove, Burr Ridge, Lisle, Elmhurst, Oakbrook Terrace, Winfield, Woodridge, Warrenville and throughout DuPage, Kane and Kendall Counties.

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In honor of the passing of our founder, Joseph F. Mirabella, Jr., our offices are closed Friday, January 31, 2020.I Agree