Saturday, May 31, 2014

Fault or No Fault Divorce Law Chicago – Overview and Differences


Fault or No Fault Divorce Law Chicago – Overview and Differences
By: M. Scott Gordon

When it comes to Divorce and Legal Separation in Cook and Lake County, there are two ways to identify the “grounds” for Divorce: fault and no fault divorce.  The first thing to understand is that Illinois courts don’t consider “fault” when determining how to divide property between spouses. However, while fault can come into play when courts are considering child custody and visitation, that is a separate issue from “grounds”.  It is always recommended to speak to your attorney when deciding how to generate the best possible outcome for your case. Let’s talk about an overview and some differences between Fault vs. No Fault Divorce.


No Fault
A “No Fault” Divorce refers to a case where the spouse filling for a divorce does not have to prove fault on the part of the other spouse. The only details are general language from the law that there are “irreconcilable differences” between the parties and they have been separated for 2 years (which can be reduced to six months by agreement of the parties).  “Irreconcilable differences” does not need to be defined to the court, and can simply mean the couple just can’t get along and the martial relationship cannot be repaired.  A spouse can not object to the no fault grounds in the petition, and no blame is placed on either party. Some possible grounds for a no fault divorce case include:
 
In order for an Illinois court to grant a no-fault divorce, the husband and wife must live separate and apart for a continuous period in excess of two years and irreconcilable differences must be found to have caused the irretrievable breakdown of the marriage. In addition, further efforts at reconciliation must have failed or future attempts at reconciliation must be considered impracticable and not in the best interest of the family. However, the two-year legal separation requirement can be reduced to six months if the parties sign an affidavit waiving the two-year separation requirement. Although many divorces in Illinois begin by alleging fault on the part of the other spouse, the vast majority of cases eventually settle with no fault attributed to either party. 


Fault Divorce
A “Fault based” Divorce case refers to when one of the spouses requests that a divorce be granted based on some fault of the other spouse. In some cases fault grounds can be a strategic advantage, it is important to consult your attorney to achieve the desired outcome.
Some of the more common grounds for considering fault in a divorce case are:

  • Adultery
  • Desertion or Abandonment
  • Abuse
  • Prison confinement  


In order for an Illinois court to grant a dissolution of marriage based upon the fault of one spouse, the court must find one of the following: that, without cause or provocation by the petitioner: (1) the respondent was at the time of such marriage and continues to be naturally impudent, (2) the respondent had a wife or husband living at the time of the marriage, (3) the respondent had committed adultery subsequent to the marriage, (4) the respondent willfully has deserted or absented himself or herself from the petitioner for the space of one year, including any period during which litigation may have pended between the spouses for dissolution of marriage or legal separation, (5) the respondent has been guilty of habitual drunkenness for the space of two years, (6) the respondent has been guilty of gross and confirmed habits caused by the excessive use of addictive drugs for the space of two years, (7) has attempted the life of the other by poison or other means showing malice, (8) has been guilty of extreme and repeated physical or mental cruelty, (9) has been convicted of a felony or other infamous crime, (10) or the respondent has infected the other with a sexually transmitted disease. "Excessive use of addictive drugs" in this section means that the drug becomes a controlling or a dominant purpose of the person’s life. Fault is a complicated divorce issue and always consult your attorney for the best strategy in your case.





If you are going through a divorce or have questions regarding the types of custody available and would like to speak with an Attorney at M. Scott Gordon & Associates feel free to contact us here, or call one of our offices to see how we can help. Family Law Advocate Skokie Office: 847-329-0101, Chicago Office 312-360-0250.