Illinois Attorneys Dealing with a Two-State Divorce
Divorce is a complex, stressful process, but even more so when the spouses live in different states. If you are dealing with a two-state divorce, special rules and procedures will apply. If you are in this position, we have provided some basic information to help you navigate the process.
You can divorce in either state in which you or your spouse resides. Most states have a residency requirement for divorce. In Illinois, it is only 90 days. Illinois requires spouses to live apart for six months before filing for divorce, but this requirement can be waived in certain circumstances, such as mutual agreement. If you file for divorce before your spouse, it can save you the cost of traveling to another state for court appearances. If your spouse is living in another state, they must be personally served with divorce papers or consent to the jurisdiction of the court in which you file.
If you file for divorce in Illinois, your children must have been residents of the state for at least the past six months for the court to make decisions regarding parenting time or allocation of parental responsibilities. Generally, the court in the home state of the child must rule on these matters. You and your spouse can both petition the court for the allocation of parental responsibility. Your parenting time schedule will be determined by the court.
The division of property will depend on the state in which your divorce has been filed. Illinois is an equitable division state, not a community property state. This means the law requires that marital property be divided equitably, which is not necessarily 50/50. The division could be 60/40, 70/30 and so on. The court considers several factors when coming to property division decisions. Family law judges are prohibited from considering marital misconduct in assets and debt division.
You will go to trial in the court where your divorce was filed. If you file for divorce before your spouse in your state of residence, your spouse will need to travel to attend the trial. If your spouse files for divorce in the jurisdiction where they reside, you will need to travel there for your divorce trial.
Some people who are being sued for divorce will allow it to proceed without their participation. If your spouse fails to show for trial, it gives the court a bad impression and allows you to tell your side of the story with no one there to contradict it. Your statements in court become part of the record, which makes them very difficult to discredit at a later time. If it is a contested divorce and your spouse does not show up, it may slow down the process, but the court will likely grant the divorce in your favor. It may delay the proceedings, but it will not stop them.
Generally, courts must honor divorces granted in other states, under the Full Faith and Credit Clause of the U.S. Constitution. Provided you properly notified your spouse of the divorce proceedings, met the residency requirements and were granted a divorce in a court with jurisdiction, the state where your spouse resides and any other state in the U.S. must recognize your divorce.
If you are facing divorce from a spouse who lives in another state, it is in your best interests to speak with an experienced lawyer. Our Chicago divorce attorneys at Nottage and Ward, LLP have extensive experience in complex family law matters. We can provide expert guidance through every phase of your two-state divorce. Call us to schedule a consultation at (312) 332-2915.
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