Legal Separation in Illinois

In Illinois, a “legal separation” is not necessary if parties are planning on divorcing. A legal separation is, however, generally an effective permanent alternative to divorce. One reason a couple might enter into a legal separation might be that they wish to avoid an actual divorce for religious reasons. A legal separation is generally similar to a divorce with the important exception that the spouses may not remarry if they are legally separated.

Legal separations are filed in a court just like a divorce. Courts may divide property, award alimony (called “maintenance” in Illinois), and award child support. It is possible to convert a legal separation to a divorce, however important legal considerations should be considered and it is best to speak to an attorney about this.

A couple can also agree to a trial separation, which is different than a legal separation. If doing so, it can help to have a written agreement that covers various terms of the trial separation such as duration, property issues, and issues pertaining to children. It is best to consult with an experienced attorney in drafting such an agreement.

Initial considerations for Divorce in Illinois

A divorce case is commenced by the filing of a document entitled "Petition for Dissolution of Marriage." Once filed, it needs to be served to the other spouse with the Petition by the Sheriff or a private process server. As an alternative, the spouse can file papers individually or through an attorney.

Who can file for divorce (“dissolution of marriage) in Illinois?

Either of the spouses can file for a dissolution of marriage in Illinois, so long as that spouse is an Illinois resident and has maintained his or her Illinois residency for at least 90 days prior to filing. Additionally, a spouse can file for a dissolution of marriage in Illinois if he or she was stationed in Illinois while a member of the armed services and has maintained his or her Illinois residency for at least 90 days prior to filing.

How does a person choose the proper county in which to file?

This is called finding the proper “venue” in which to file. Illinois law says that proceedings are to take place in the county where the plaintiff (the spouse who filed the divorce) or the defendant resides.

It is possible for a defendant (the spouse who is being sued for a divorce) to object to the county in which his or her spouse filed the divorce. But there are specific legal requirements for when and how such an objection must be made. Failure to abide by these legal requirements would mean that a defendant would waive any objection to the county in which a dissolution of marriage was filed.

Sometimes a spouse who is likely to initiate matrimonial proceedings has moved from the marital residence into a different county. Since he/she is a resident of a new county, he/she may initiate matrimonial proceedings in the new county of residence. This may be done immediately and without any waiting period.

Grounds for Divorce

“Grounds for divorce” are the legal reasons for a divorce. The most commonly used ground for divorce in Illinois is "irreconcilable differences", also known as "no fault."

In such a case, the spouses are required to prove: (1) a breakdown in the marriage, (2) that they have been living separately for two years, (3) that they have attempted counseling, and (4) that all efforts to reconcile have failed. A judge can limit the period of separation to six months in certain cases.

Other grounds which may be used are mental cruelty, physical cruelty, habitual drunkenness or a drug habit, adultery, impotence, and imprisonment.

Division of Property

Divorce laws regarding property division in Illinois do not presume that property will be divided 50 / 50. Illinois is referred to as an “equitable division” state (as opposed to being a “community property state” as are some other states). This means that property is divided “equitably.” This does not necessarily mean “equal” or 50/50. Its meaning is closer to “fair” and “just.”

All property owned by either spouse may be categorized under Illinois law as either marital property or non-marital property.

“Marital property” means all property acquired by either spouse after the marriage, except the following, which is known as “non-marital property”:

• 1. property acquired by gift, legacy or descent
• 2. property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent
• 3. property acquired by a spouse after a judgment of legal separation
• 4. property excluded by valid agreement of the parties
• 5. any judgment or property obtained by judgment
• 6. awarded to a spouse from the other spouse
• 7. property acquired before the marriage
• 8. the increase in value of property acquired by a method listed in numbers (1) through (6), irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effort of a spouse, or otherwise (subject to the right of reimbursement provided in Illinois Statute, Ch. 40, Section 503(c))
• 9. income from property acquired by a method listed in numbers (1) through (7 if the income is not attributable to the personal effort of a spouse

As you can see, this definition is somewhat complicated, but it should at least provide you some idea of how the law works. It is advisable to consult an attorney in any case involving divorce or the division of property.

If property is considered to be “marital property” under Illinois law, it is then subject to division between the spouses upon a divorce (dissolution of marriage). Illinois law requires property to be divided equitably, not according to a specified formula.

Factors that courts consider in determining what is “equitable” for purposes of property distribution include: Contribution, Homemaker Contribution, Value of Non-marital Property Assigned, Duration of the Marriage, Relevant Economic Circumstances, Prior Marriages, Agreements, Situational status, Custody of Children, Maintenance, Future Income and Tax Consequences.

Alimony in Illinois

Alimony (referred to as maintenance in Illinois) is the court-ordered financial support of one spouse by the other spouse as part of a legal separation or a divorce.

The laws of Illinois governing alimony are generally contained in the Illinois Marriage and Dissolution of Marriage Act (a link here). It is a good idea to read the statutes carefully and to consult an attorney to determine the laws’ application in your particular situation.

Factors Affecting the Amount and Duration of Alimony in Illinois

In Illinois, alimony is not mandatory in a divorce or legal separation. A court may decide not to grant alimony or to limit the amount and duration of alimony depending on the ability of both parties to provide for their own needs.

There are three basic types of alimony in Illinois: permanent maintenance, temporary maintenance, or maintenance until the payee spouse can become self supporting (called rehabilitative maintenance).

In determining whether to grant alimony, a court will consider all relevant factors that “appear reasonable and necessary including to the extent applicable”:

• • the income and property of each party, including alleged marital property within the sole control of one party and alleged non-marital property within access to a party;
• • the needs of each party;
• • the realistic earning capacity of each party;
• • any impairment to present earning capacity of either party, including age and physical and emotional health;
• • the standard of living established during the marriage;
• • the degree of complexity of the issues, including custody, valuation or division (or both) of closely held businesses, and tax planning, as well as reasonable needs for expert investigations or expert witnesses, or both;
• • each party's access to relevant information;
• • the amount of the payment or payments made or reasonably expected to be made to the attorney for the other party; and
• • any other factor that the court expressly finds to be just and equitable.

As you can see, the law is complex. This explanation is intended only as a basic overview. It is always best to read the actual statutes carefully (linked above) and to consult an attorney to determine the law in your particular situation.

Modifying Maintenance Orders in Illinois

A court generally may increase or decrease the amount of money paid as alimony if either spouse requests it from a court and if there has been a substantial change in circumstances. However, the parties may agree to make maintenance non-modifiable. Examples of changes in circumstances that might warrant a maintenance modification might include increased or decreased ability to pay or a substantial change in the needs of either party.

When do Alimony Payments End?

Alimony payments generally will end when one party dies or when the recipient spouse remarries. In some cases, it may also end when the recipient spouse cohabitates.

Tax Consequences of Alimony

It is important to understand that there may be tax implications for individuals who pay or receive alimony. According to Section 71 of the Internal Revenue Code, alimony must be included in the recipient’s gross income and can be excluded from the payer’s gross income.

However, it is critical that payments actually qualify as alimony under the law. To qualify as alimony (also according to Section 71 of the Internal Revenue Code), payments must generally meet five conditions:

• (1) The payment is be a cash payment (such as a check or money order)
• (2) The payment is received by (or on behalf of) a spouse under a “divorce or separation instrument”
• (3) The divorce or separation instrument does not designate the payment as a payment which is not includible in gross cross income as alimony and not allowable as a deduction for the payee spouse (under Section 215 of the Internal Revenue Code).
• (4) The payer and payee are not members of the same household at the time payments are made
• (5) There is no liability to make payments after the death of the recipient spouse

Sometimes it is difficult to determine whether a payment qualifies under the law as alimony. There also may be state and local tax implications for individuals who pay or receive alimony. Therefore, it is best to consult with an attorney or qualified tax professional.

Child Support in Illinois

Child support is the court-ordered payment by one parent to the custodial parent of a minor child, generally after divorce or separation. In Illinois, a court may order parents to pay an amount reasonable and necessary for the child’s support.

Child support in Illinois is calculated as a function of the obligor’s net income(the "obligor" is the parent paying support). “Net income” means income from all sources. Defining “net income” sounds simple, but there are many complicating factors.

Once a parent's net income is determined, courts generally will apply certain guidelines defined in the law to determine the minimum amount of child support. The guidelines are:

Number of Children	Percentage of Supporting Party's Net Income
1	20%
2	28%
3	32%
4	40%
5	45%
6 or more	50%

The above guidelines are applied by courts unless a court determines that application of the guidelines would be inappropriate, after considering the best interests of the child.

In determining “the best interests of the child,” the court may consider evidence regarding a variety of factors, including (but not limited to):

• • The financial resources and needs of the child
• • The financial resources and needs of the custodial parent
• • The standard of living the child would have enjoyed had the marriage not been dissolved
• • The physical and emotional condition of the child, and his educational needs
• • The financial resources and needs of the non-custodial parent.

There are other factors that may affect the amount of child support an individual is required to pay.

Child support generally ends when children turn 18 unless the child is still attending high school, in which case support may be extended to the age of 19. After that, child support terminates unless there is an agreement to the contrary. It may be possible, however, to extend child support children beyond the child’s 19th birthday even if the child is not attending college. For example, where a child suffers educational and learning disabilities, Illinois law permits child support to continue beyond the age of majority.

A helpful Illinois child support calculator is available here.

Child Custody in Illinois

Illinois recognizes two basic forms of child custody: joint custody and sole custody. Custody determinations are based on “the best interest of the child.”

Illinois law provides out eight specific factors that must be considered in making any custody determination:

• • the wishes of the child's parent
• • the wishes of the child as to custody
• • 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 occurrence of ongoing abuse (as defined in Section 103 of the Illinois Domestic Violence Act of 1986) whether directed against the child or directed against another person
• • the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.

Child Visitation in Illinois

Under Illinois law, a non-custodial parent generally has a right to reasonable visitation unless a court determines that visitation would endanger the child’s health or wellbeing (in which case, a court might deny or restrict visitation). In determining what is “reasonable” visitation, a court may take into account a variety of factors, including the age of the child and the circumstances and location of visitation.