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No-Fault vs. Fault Divorces in Illinois

Posted on in Divorce

Courts will not simply grant divorces arbitrarily or capriciously.  Therefore, when a spouse files for divorce, he or she must state specific legal grounds why a court should grant the divorce.  Based on the grounds cited, a divorce can be referred to as "no-fault" or "fault."

Historically, all divorces included an element of fault, or blame on one of the spouses for the failure in the marriage. Over the years, however, all fifty states have passed legislation allowing residents to file a no-fault divorce. Some states continue to allow residents to file fault-based divorces if they so choose. Illinois is one of those states, which leads to the common questions among Illinoisans: should I choose a no-fault or fault divorce?  This post briefly looks into the advantages and disadvantages of each.

 No-Fault Divorce

Many people state as grounds for divorce that there are "irreconcilable differences" between the spouses, and therefore the marriage is irretrievably broken and future efforts to reconcile would be futile.  When you state these particular grounds, you are not specifically blaming the broken marriage on one spouse or another, and so this is called a "no-fault divorce."  In order for an Illinois court to find the existence of irreconcilable differences, a couple usually must have been separated for at least two years.  If both couples sign a waiver, the separation requirement is only six months, though couples will still have to endure a waiting period to proceed on a no-fault divorce.

 Fault Divorce

Many people choose to file a fault-based divorce to avoid the waiting period.  Illinois law sets out the following ten possible grounds in a fault divorce:

  • adultery
  • impotence
  • bigamy
  • willful desertion for at least one year
  • habitual drunkenness for at least two years
  • excessive use of addictive drugs for at least two years
  • extreme and repeated physical or mental cruelty
  • infecting the other spouse with a sexually transmitted disease
  • attempt to kill the other spouse by poison or other means showing malice
  • conviction of a felony or other infamous crime

 These must not be merely allegations or suspicions, but the grounds must be proven by independent evidence in court.  For this reason, fault-based divorces can get extremely messy and ugly with extreme intrusion into the spouses' personal lives.  Furthermore, in Illinois, blaming another spouse does not necessarily mean you will be granted additional spousal support, child support, or property. Therefore, many people do not believe it is worth the pain to go through a fault divorce simply to avoid a waiting period.

 If you wish to file for divorce, you likely have many questions, and should contact an experienced Illinois divorce attorney as soon as possible.

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