In Illinois, a divorce is the legal end of a marriage, after which ex-spouses are free to marry other people. Legal separation, on the other hand, will not immediately result in the termination of a marriage. The process for getting a legal separation is actually not all that different from divorce because both involve filing paperwork with the court and will result in the allocation of parental responsibilities, child support, and spousal support. As long as your spouse consents, you can even have the court divide up any marital property as part of your legal separation, although this is not mandatory as it is with divorce.
However, there are also a number of differences between the two, aside from the obvious difference concerning the existence of the marriage. You can only file for a divorce if you or your spouse have lived in Illinois for at least 90 days, but there is not such residency requirement for a legal separation. Also, you can only procure a divorce if you have been living separate from your spouse for at least six months or otherwise be able to prove that your marriage had suffered an irretrievable breakdown causing irreconcilable differences. Otherwise, the court may order you to engage in counseling to see if your marriage may be saved. If you wish to obtain a legal separation, you only need to show that you are currently living separate and apart from your spouse, regardless of how long that separation has lasted and without having to prove that your marriage is irretrievably broken. Finally, if you wish to file for a joint simplified divorce instead of just a standard divorce, you must meet several additional requirements that you do not have to satisfy to obtain a legal separation or a standard divorce. These additional requirements include:
- The marriage must have lasted for less than eight years
- Each spouse cannot earn more than $30,000 per year
- The total household income must be less than $60,000 annually
- There must not be any children involved
- The marital property must be worth less than $50,000
- Neither spouse can own real estate
- Each spouse must hold their own retirement benefits separately, and these benefits must not amount to more than $10,000 per spouse
What Paperwork Do I Need to File for Divorce?
In order to simplify the process of filing for divorce, the courts of Illinois have made standard forms available online for all of the paperwork you will need to file. The type of divorce you want will dictate what kind of paperwork you will need to file. If you want a joint simplified divorce, then you will need to get together with your spouse to complete and file a Domestic Relations Cover Sheet and a Joint Petition for Simplified Dissolution. However, if you want to commence a standard divorce, you will need to fill out a Domestic Relations Cover Sheet, a Petition for Dissolution of Marriage or Civil Union, a Summons, a Certification verifying everything that you are claiming in the petition, and a Certificate of Dissolution. There are separate Petition for Dissolution of Marriage or Civil Union forms for those with children and those without children. Unlike the paperwork for a joint simplified divorce, you can fill out and file all of the paperwork to start a standard divorce on your own, and you do not need to inform your spouse of your plan to get a divorce until you have to serve them the divorce papers.
Community Property vs. Separate Property
Illinois is an equitable property state. This means that the marital property is divided in an equitable, or fair, manner during a divorce, instead of equally in the same manner as courts in community property states. Marital property includes anything either spouse acquired during the marriage, unless it otherwise qualifies as separate property, known as “non-marital property” under Illinois law. Separate property, which is protected from being divided in a divorce, generally consists of any property that a spouse:
- Obtained prior to getting married
- Received as a gift or inheritance
- Obtained after a legal separation was granted
- Agreed to keep as separate property through a written agreement, such as a prenuptial or postnuptial agreement
Under Illinois law, any couple going through a divorce has the opportunity to decide how they want their marital property to be divided prior to the court making any effort to determine what an equitable division of the marital assets would be. If you and your spouse are getting a joint simplified divorce, then you will need to have already agreed on how you think the property should be divided. When determining whether your preferred division of marital property is fair or how to divide the property in a more equitable manner, the court will consider several factors, including:
- Any contribution either spouse made during the marriage, including as a homemaker, that increased or decreased the value of martial or non-marital property
- The duration of the marriage
- Each spouse’s economic circumstances, health, and age
- Any prenuptial or postnuptial agreements
- Any custody arrangements
- Any obligations that either spouse may have toward a prior marriage
- Whether the marital property apportionment is being given in lieu of other financial support
What Should I Do If There Are Children Involved?
If there are children involved in a divorce, the process is more complicated because the court will need to make determinations regarding child custody and support. Child custody refers to the assignment of the physical care of a child and allocation of parental responsibilities. When determining what sort of custody arrangement to which the child should be subjected, the court will look at what is in the child’s best interest and take into consideration any written agreements that the child’s parents have already created with regard to how custody should be allocated. In order to determine what would be in the best interest of the child, the court is required to consider a variety of factors, including the wishes of the child and the parents, the physical and mental health of everyone, the needs of the child, and the schedules of both the parents and the child. You should make sure that the custody arrangement is something that you will be happy with in the long run, rather than something that you are okay with for now but may want to change in the future, because changing a custody arrangement can be quite difficult and expensive, as you will likely need to hire a child custody lawyer to fight for you to have a more involved role in your child’s life.
Unlike custody, which is focused on the physical care of a child, child support is based on the financial care that a child is owed by their parents. The court may set a portion of the marital property aside specifically for the financial care of the child while it is equitably dividing the property. In addition to this, a court may require a parent who does not have custody to pay child support in order to take care of the financial responsibility they owe to the child. While child support laws provide statutory minimums based on percentages of a parent’s income, including any spousal maintenance they may receive as a result of the divorce, the actual amount that a court may order also depends on other factors such as the child’s standard of living prior to the divorce and the parents’ financial resources.
Do I Need to Pay Alimony?
On top of dividing the marital assets, the court may also require one spouse to pay alimony, known as maintenance under Illinois law, to the other spouse if it is appropriate. The court will determine whether maintenance is appropriate by looking at a number of factors, including each spouse’s earning capacity, the assets and current income of each spouse, the duration of the marriage, each spouse’s needs, and any contributions that the spouse seeking maintenance made to further the education or earning capacity of the other spouse. These factors may also be used in determining just how much and for how long maintenance should be given. However, specific guidelines may be applied to determine the length and amount of maintenance to be paid if a couple of requirements are met. The requirements that trigger the specific guidelines are a combined gross income of less than $250,000 and a lack of support requirements to prior relationships, such as maintenance to another former spouse or child support to a child with another partner. If these requirements are met, the amount and duration of maintenance are calculated according to the guidelines, which base the amount on the gross incomes of each spouse and the duration on the length of the marriage.
Where Can I Find the Right Divorce Lawyer?
Filing for divorce is a huge, life-changing step. Naturally, anything this major will likely cause you to have a lot of questions. Speaking with an Illinois divorce lawyer will help you to understand your rights, obligations, and the process of divorce.