Starting from January 1, 2016, Illinois joined a majority of states in the USA in eliminating all the fault-based grounds for divorce. This was done through Public Act 99-90 that removed all fault-based grounds for divorce and the only ground remaining that a party can allege is known as irreconcilable differences.
Prior to January 1, 2016, fault-based grounds for divorce existed in the State of Illinois, which included, but were not limited to adultery, abandonment, abuse, desertion, cruelty, etc. Alleging one of these grounds allowed a party to waive a 2-year separation requirement.
Today, or at least since January 1, 2016, one party needs to simply allege that irreconcilable differences have broken down the marriage. This can mean a lot of things. The Illinois Marriage and Dissolution of Marriage states, in 750 ILCS 5/401(a) that “irreconcilable differences have caused the irretrievable breakdown of the marriage and the court determines that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family.”
This can mean simply that one person in the marriage does not want to stay married anymore and wants a divorce. No longer do you have to prove that one person abused the other, or committed adultery by cheating or having an affair, or even that a person abandoned the other. If you don’t like your spouse’s cooking, for example, you can allege that irreconcilable differences have broken down the marriage. Furthermore, you do not have to detail what it is that specifically caused the irreconcilable breakdown. You are simply required to allege it.
The next logical question may be, what if the other person, the spouse, says that there has NOT been an irreconcilable breakdown of the marriage? The other spouse is certainly able to do that, which will bring us into the second step of the discussion. In the event one spouse contests or alleges that there has been an irreconcilable breakdown of the marriage and the other spouse disagrees, then the person making the allegation needs to also allege that there has been a six-month separation period.
The reason for the six-month separation period is because the allegation of irreconcilable differences creates a rebuttable presumption that the marriage has been broken down, but if there is an accompanied six-month separation period, then that presumption becomes irrebuttable, meaning, if you have been separated for six months or longer, then the court will automatically making a finding that there has been irreconcilable differences between the parties. Specifically, 750 ILCS 5/401(a-5) states that “if the parties live separate and apart for a continuous period of not less than 6 months immediately preceding the entry of the judgment dissolving the marriage, there is an irrebuttable presumption that the requirement of irreconcilable differences has been met.”
This six month separation period is not necessarily required if both parties agree that irreconcilable differences have caused an irretrievable breakdown of the marriage. The law does not state anywhere that the parties ought to be separated for a period of 6 months in order for a Judgment for Dissolution of Marriage to be entered.
If you cannot live physically separate for 6 months because of financial concerns, for example, you can still be considered living separately under the purview of the law if you and your spouse maintain lifestyles that equate to living separately, such as having separate rooms, not engaging in sexual relations, etc. If you have a specific question about your situation and whether your living situation can be considered living separate, please don’t hesitate to call us now.
The Illinois legislature, I presume was hoping that requiring a six month separation would institute a cooling-off period between divorcing couples. In my years of practicing family law in Chicago, Illinois, the issue of separation time does not come up often as an issue and when it does can be quickly resolved by asking “Did you feel like you were separated?”