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:
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.