Fault v. No Fault
Marriage and divorce are governed by the Illinois
Marriage and Dissolution of Marriage Act which became
effective October 1, 1977. This statute tells us what is
needed to get married, have a marriage declared invalid
(annulled), get a legal separation, as well as to obtain
a dissolution of marriage (divorce).
For purposes of this pamphlet we will deal with issues
concerning divorce only. This is meant only as a general
outline and does not fully discuss each issue. In the
real world, the courts deal with each case based upon its
own set of facts.
v. No Fault
In a divorce charging your spouse with fault, you must
prove grounds exist for the divorce, such as mental
cruelty, physical cruelty, adultery, desertion, etc.
Illinois also allows for no-fault divorces.
Parties living separate and apart for two years may
get a divorce based upon irreconcilable differences. If
the parties are in agreement as to the divorce, they may
sign a waiver of the two year period if they have lived
separate and apart for six months.
Illinois courts favor joint custody agreements for the
minor children (under 18 years). Joint custody means that
both parents will make major decisions together
concerning the children such as their education,
religion, medical care, etc. Joint custody agreements
also provide for the physical possession of the children
(where the children will reside). It can involve the
children living half the time with each parent or one
parent having the children on weekdays and one parent
having them on certain weekends (or any other reasonable
variation the parties agree upon) .
If the parties do not want or cannot agree upon joint
custody, one parent will be given the sole care, custody,
control and education of the children. The other parent
will be awarded visitation.
Child support is required by law and is set according
to statutory guidelines. While both parents are required
to support their children, the non-custodial parent is
generally ordered to pay support to the custodial parent
based upon a percentage of his/her net income. Net income
is take home pay after deducting federal and state income
tax, FICA, union dues, mandatory pension, mandatory
medical and life insurance contributions. Contributions
to charities, credit union accounts, loans, garnishments
or pension and profit sharing are not deducted for
purposes of net income. The guidelines provide the
following percentages of net income:
children or more 50%
Payments must be made through an Uniform Order of
Support and Notice to Withhold, where the support is
withheld from the Payor's wages. Whether a court orders
maintenance (alimony) depends upon a number of things.
The income of both parties, the number of years of the
marriage, the potential incomes of each party, and a
party's educational level are some of the things a court
will consider in deciding whether to award
In a short-term marriage, a court may order
rehabilitative maintenance for a period generally between
6 months to 5 years. This enables the party receiving
maintenance a period of time in which to go back to
school or concentrate on a career so that he/she will be
able to support themselves.
Finally, a distribution of property must be
accomplished when obtaining a divorce. It is necessary to
disperse all assets and debts.
Marital property consists of all property, including
real estate or personal property such as instruments or
equipment, that has been acquired during the marriage.
Property owned before the marriage, gifts made to one
party or inheritances are not marital property . But, it
is important to note that non-marital property can become
marital by putting the other spouse's name on the
property or using marital property to substantially
increase the value of the non-marital property. Similarly
marital property can become non-marital property.
Debts are treated similarly. If the debt was incurred
before the marriage, it is non-marital debt. Debt
incurred by either party for whatever reasons during the
marriage is marital debt and must be allocated between
How marital property and debt are divided will again
be based upon a number of considerations. Salaries, who
has custody of the children, how much child support
and/or maintenance is being paid, future earnings, who's
paying what debts will all be taken into account if the
property is to be divided on a more or less than 50-50
One final note concerning property and debt is that
even if property is acquired or debt is incurred after
the parties stop living together, until they are
divorced, it is marital property or marital debt.
Therefore, even if the parties have been separated for
years, whatever was acquired during those years of
separation is still considered marital.
Illinois does not allow palimony or common law
marriages. Parties who are living together can not look
to the divorce laws to help them divide property or
provide for children. In order to establish paternity of
a child, suit must be filed or consent must be
Property that has been acquired while two unmarried
persons are living together will have to be dealt with
when they break up. If the parties entered into a
partnership agreement or a contract, those terms will
decide who gets the various property. If there is no
agreement or contract, some writing as to who holds
title, i.e. purchase of a house or car, will control. If
there are no title papers, proof of purchase may be used
to determine who gets the property. Without any written
proof, a lengthy and expensive argument will result.
This pamphlet is for informational purposes only. You
should consult with an attorney regarding your specific
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