Abandonment And Divorce In Illinois
People don’t always announce, “I want a divorce!” Sometimes, they just leave…and you never hear from them again. The other spouse’s life must go on and get in order so they will need a divorce from the spouse who abandoned them. So, what is abandonment in an Illinois divorce?
Abandonment Is No Longer A Grounds For Divorce
Before 2016, you used to have to prove “fault” to get a divorce in Illinois. There was a laundry list of reasons you could ask for a divorce back then; Adultery; cruelty or violence; willful desertion for 1 year; drug/alcohol addiction for 2 years; impotency; unexplained absence; conviction of crime; venereal disease; 2 years of separation by irreconcilable differences; undissolved prior marriage, and attempted murder of spouse.
Three of those reasons; willful desertion, unexplained absence, and 2 years of separation were all, essentially, abandonment.
Now, you don’t need abandonment or any other reason to get a divorce in Illinois. Every divorce in Illinois is now due to “irreconcilable differences” which requires no real proof. The fact that a person filed for divorce is proof of irreconcilable differences in itself.
While abandonment may now be an antiquated term in regards to grounds for divorce in Illinois, abandonment is still a useful concept in other aspects.
Can You Find The Abandoning Spouse Or Not?
The biggest issue with an abandonment is can you even find the abandoning spouse or not?
If you can find the abandoning spouse and you can serve them, you can resolve every last issue of your divorce. This is because personal service of a party in a divorce is called having personal jurisdiction. After personal service, the petitioner in a divorce can enter a child support or maintenance/alimony order and/or a disposition of marital property against a respondent, In re Marriage of Brown, 506 N.E.2d 727, 729 (il. App. Ct. 1987)
If you cannot find the abandoning spouse, then you only have “in rem jurisdiction.”
“In rem” means “about the thing” so the Illinois divorce court will only have jurisdiction against the marriage itself NOT the respondent, personally. An in rem court proceeding can deal with stuff about the marriage like a divorce, custody of children and disposition of non-marital property. Wilson v. Smart, 155 N.E.2d 288, 291 (I1. 1927). Child support, maintenance and division of assets will be reserved until you can actually serve the abandoning spouse.
Abandonment And Maintenance (Formerly Known As Alimony) In Illinois
When deciding if maintenance is appropriate in an Illinois divorce, “[t]he court shall first make a finding as to whether a maintenance award is appropriate” 750 ILCS 5/504(a)
The court considers, “the needs of each party” 750 ILCS 5/504(a)(2)
If a spouse has truly abandoned you, you probably haven’t seen him or her in quite a while. That means that both you and your spouse seem to be able to provide for yourselves without help from the other party.
This means that maintenance (formerly known as alimony) will be off the table because you have both proven that you don’t need support from the other spouse to live.
If you want maintenance from your spouse after they abandoned you, you probably should have been looking for your spouse a lot earlier. If your spouse was making good money, it would be fairly easy to find them as only people who work exclusively in small amounts of cash successfully disappear.
Of course, every divorce is different and an Illinois family law judge may award maintenance if the circumstances are extreme enough.
Abandonment And Parenting Time
If a parent has abandoned his or her partner and their children…there are going to be big effects on parenting time.
If there’s a finding of abandonment by a parent from the court, the other parent automatically gets sole custody in Illinois.
“[I]f he abandons her, she is entitled to the custody of their minor children” 750 ILCS 65/16
Illinois family law courts award parenting time and parenting-decision making based on the best interests of the child. In deciding the children’s best interests, the Illinois family law court will consider:
“The distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement.” 750 ILCS 5/602.7(b)(9)
“The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.” 750 ILCS 5/602.7(b)(13)
It’s going to be near impossible for a parent that disappeared to establish that they are capable of either of these two factors…at least immediately.
Furthermore, an Illinois family law court is entitled to make an order reducing parenting time due to “abuse, neglect, or abandonment of the child.” 750 ILCS 5/603.10(b)(1)
In the case of an abandoning parent, an Illinois court is almost always going to order reintegration therapy (also known as reintroduction therapy)
The court may order individual counseling for the child, family counseling for one or more of the parties and the child, or parental education for one or more of the parties, if it finds…the child’s physical health is endangered or that the child’s emotional development is impaired”750 ILCS 5/607.6
Abandonment And Division Of Assets
If a spouse disappears, you can do two things to distribute his or her assets: 1) declare them an abandoner or 2) file a petition for presumption of death.
To declare your spouse and abandoner for the purpose of selling your joint stuff without concern the Illinois statute declares:
“In case the husband or wife abandons the other and leaves the state, and is absent therefrom for one year, without providing for the maintenance and support of his or her family, or is imprisoned in the penitentiary, the circuit court …[shall] authorize him or her to manage, control, sell or incumber the property of the other, as shall be necessary, in the judgment of the court, for the support and maintenance of the family, and for the purpose of paying debts of the other, or debts contracted for the support of the family. Notice of such proceedings shall be given as in other civil actions, and anything done under or by virtue of the order or judgment of the court, shall be valid to the same extent as if the same were done by the party owning the property.” 750 ILCS 5/65-11
This essentially eliminates the whole “in rem” issue that was discussed above. Although, I have never seen this employed in my 15 years as a family law attorney.
A petition for presumption of death is pretty extreme. The petition is filed in probate court not domestic relations court.
Most other states say “if you haven’t heard from the person in X years you can presume they are dead.” In Illinois, the statute provides no set number of years you have to wait, you have to prove the person is dead by a preponderance of the evidence. It is very difficult to prove a nullity.
Additionally, there is some case law that says a 7 year absence is sufficient to prove a presumption of death.
“The rule of law is well established that the continuous absence of a person from his home or place of residence for seven years, during which period nothing is heard from or concerning him, raised the presumption of his death for all legal purposes.” McNaghten v. Northwestern Mut. Life Ins. Co., 318 Ill. App. 390 – 1943
When a spouse is declared dead, you can start executing that spouse’s will if they left one.
If the presumed deceased spouse had no children from the marriage, the spouse gets everything.
“If there is a surviving spouse but no descendant of the decedent: the entire estate to the surviving spouse.” 755 ILCS 5/2-1(c)
If the presumed deceased spouse did have children then the surviving spouse and the children will divide the presumed deceased spouse’s estate.
“If there is a surviving spouse and also a descendant of the decedent: 1/2 of the entire estate to the surviving spouse and 1/2 to the decedent’s descendants per stirpes.” 755 ILCS 5/2-1(a)