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The History of No-Fault Divorce in Illinois

By Nottage and Ward on April 17, 2020

The first divorce laws in Illinois were passed in 1819. Abraham Lincoln represented more than 120 litigants in divorce cases in his 25 years of practice, a mostly unknown fact reported by researchers for the Lincoln Legal Papers project. The Illinois state legislature had given women the right to divorce earlier than many other states, and Abraham Lincoln served as their advocate. At that time, Illinois judges not only granted divorces to women but also awarded them custody of their children.

When Did Illinois Become a No-Fault Divorce State?

As of January 1, 2016, we became a no-fault divorce state, under Public Act 99-90. This means all fault-based grounds for dissolution of a marriage have been eliminated, including mental cruelty and infidelity. Now, the only grounds for divorce in Illinois are irreconcilable differences. A couple can be granted a divorce if the marriage has broken down irretrievably because of irreconcilable differences, and the court finds that reconciliation efforts have failed, and future attempts to reconcile would be impracticable and not in the family’s best interests.

What Was the Past System Like for Divorce in Illinois?

Initially, to obtain a divorce in Illinois, a spouse needed to prove grounds for divorce. Accepted grounds included abandonment, mental cruelty, and adultery. Habitual drunkenness was also grounds for divorce. Irreconcilable differences were first introduced as grounds for divorce in 1984. At that time, obtaining a divorce on those grounds required proving a two-year separation, or proving a six-month separation along with the consent of your spouse to waive the two-year separation. Until January 1, 2016, fault-based grounds for divorce, such as adultery, still existed.

What Is the Current Divorce System Like?

Today, irreconcilable differences are the only grounds for divorce in Illinois. You can prove this by simply showing the court that you have lived separately and apart from your spouse for at least six months. Once you have established a six-month separation, there is a presumption that the requirement of irreconcilable differences has been met, with the grounds for divorce proven. If you and your spouse agree that you have irreconcilable differences, there is no waiting period for your divorce decree to be entered. Even if your spouse contests that there are irreconcilable differences, you can still be granted a divorce.

What Impact Have No-Fault Divorce Laws Had In Illinois?

For many years, spouses in Illinois were allowed to file for divorce on fault grounds. Abuse, infidelity, abandonment, and substance abuse are some of the grounds on which divorces were granted. If the spouse who was suing for divorce could prove particular behavior, the other spouse was found to be at fault for the divorce.

Before 1977, the at-fault spouse could be punished in the divorce judgment for his or her destructive behavior. This punishment could take the form of a smaller percentage of the marital assets or less alimony. After 1977, marital misconduct was no longer considered by the courts in determining asset division, spousal maintenance, and other issues. Sweeping reforms that went into effect January 1, 2016 eliminated all fault-based grounds for divorce. They also eliminated the six-month separation period, provided both spouses agree to the divorce.

Chicago Family Law Attorneys

Even a no-fault divorce is a complicated legal process, particularly when children or high assets are involved. At Nottage and Ward, LLP, our practice is focused exclusively on divorce and family law matters – it’s all we do. Contact us at (312) 332-2915 if you are contemplating divorce in Illinois.

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