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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.

Fault 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:

1 child 20%
2 children 28%
3 children 32%
4 children 40%
5 children 45%
6 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 maintenance.

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 the parties.

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 basis.

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 obtained.

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 situation.
© Copyright 2012 Shimberg and Crohn, P.C.


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