Adultery and Divorce in Illinois

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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  1. […] the property is either a marital property or the money spent on the property can be considered a dissipation of assets on the part of the party who is related to the […]

  2. […] you can no longer sue your husband or wife’s lover, adultery still is a factor in a […]

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  5. […] Naguit, 433 NE 2d 296, settled this issue. You cannot annul a marriage in Illinois if you CAN have sex. It doesn’t matter if you really did have sex or not. The only question is COULD you have had […]

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Adultery And Divorce in Illinois

Adultery and Divorce in Illinois

When a marriage breaks apart, it’s a horrible and painful process.  When adultery is the cause of the break up, the adultery makes the break up even harder.  Beyond the mere hurt of being rejected for someone else, the betrayal and lack of trust after adultery makes everything about a divorce harder.

It is one thing to not know your future. But to not know your past because of the lies and deception of adultery is a devastating experience.

In a strictly legal sense, adultery and divorce in Illinois have an unusual connection.

Adultery is not an official grounds for divorce in Illinois.

In Illinois, before 1984 there were all sorts of grounds for divorce such as abandonment and adultery.  You’d have to prove those grounds in court in order be granted a divorce. This means that if one person didn’t want to be divorced the other person  would have to hire private detectives to testify they saw the cheating party “committing adultery.”  This involved such dramatics as bursting into hotel rooms with cameras.

Since 2016 there is only one ground for divorce, irreconcilable differences.  Irreconcilable differences means you tried to get work out the problems in your relationship but you couldn’t resolve those problems.  Proving irreconcilable differences is much easier.  You either testify that you couldn’t resolve things or just testify that you’ve been separated for six months which automatically proves irreconcilable differences.

“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.” 750 ILCS 5/410(a-5)

So, adultery and divorce in Illinois are no longer legally linked under the current Illinois statute. Illinois is a no-fault state for the purposes of divorce.

Adultery Is Almost Always Accompanied By Dissipation Of Assets

Unless the cheating spouse’s paramour is a very cheap date, the other spouse can make a claim for dissipation of assets.

Before the final division of a divorcing couple’s marital assets, the court must consider the dissipation of the value of marital and non-marital property.

“Dissipation is defined as the use of marital property for one spouse’s benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown” In Re Marriage of Tietz, 605 NE 2d 670 Ill Appellate Court, 4th Dist. 1992.

So, anything moneys spent on a “purpose unrelated to the marriage” at a time “when the marriage is undergoing an irreconcilable breakdown” will be considered counted as wasting the marriage’s money.

A person with a shopping addiction may argue that their spending was, in fact, related to the marriage and therefore not dissipation.  A still-married person paying for vacations with their new girlfriend or boyfriend can never say that expense is not a “purpose unrelated to the marriage”

While a degenerate gambler may say that their gambling occurred before the marriage underwent “an irreconcilable breakdown” a cheater cannot say their affair happened before the marriage was in the process of breaking up.

Basically, if the money was spent on a date, on a vacation or on a gift for the new lover, it’s dissipation.

Alleging dissipation of assets in a divorce is a very formal process.  The Illinois laws require:

“[A] notice of intent to claim dissipation shall be given no later than 60 days before trial or 30 days after discovery closes, whichever is later;
The notice of intent to claim dissipation shall contain, at a minimum, a date or period of time during which the marriage began undergoing an irretrievable breakdown, an identification of the property dissipated and a date or period of time during which the dissipation occurred.
a certificate or service of the notice of intent to claim dissipation shall be filed with the clerk of the court and be served pursuant to applicable rules.” 750 ILCS 503(d)(2)

Once this formal notice has been filed the burden of proof shifts from the classic American “prove the accused did it” system.  The accused dissipater must now prove they did not dissipate the assets as alleged.

This is a tall order.  The alleged dissipater must prove how the assets were spent for a marital purpose.  This means the alleged cheater cannot hide behind ATM cash withdrawals.  The explanation of the spent money usually relies on the alleged cheater’s credibility as they testify.

Testimony alone is usually still not enough to prove the spent money was not dissipation. “If expenditures are not documented adequately by the person charged with dissipation, the courts will affirm a finding of dissipation.” In Re Marriage of Tietz, 605 NE 2d 670 Ill Appellate Court, 4th Dist. 1992.

This burden of proof is so extreme that an Illinois divorce lawyer’s only advice to a client who is cheating is to keep receipts of all expenses whether they were for an affair or not.  Otherwise, the courts may find that legitimate expenses were also a dissipation of assets.
 
The Effect Of Dissipation of Assets in An Illinois Divorce

Once the courts find that assets have been dissipated they will adjust the allocation of marital assets based on the dissipation.

Illinois courts allocate the marital estate among the two parties based on a variety of factors but the bias is always towards a 50/50 split. After the courts consider the allocation of the marital property the courts consider any findings of dissipation.

If, for example, a divorcing couple had $ 100,000 of marital assets to divide and one party to the divorce spent $ 10,000 on an affair and that $ 10,000 was found to be a division of assets, the court will allocate the other party to the divorce an extra $ 5000.  The theory is that if the money had not been dissipated, the divorcing couple would have $ 110,000 to divide.

So, the Illinois court, in this example would allocate $ 55,000 to the non-cheater and $ 45,000 to the cheater.  Basically, imagining that the parties still had the total of $ 110,000 of assets but the cheater took a $ 10,000 advance on their portion.

Adultery’s Effect On Division of Assets 

Outside of dissipation of assets Illinois courts are not to consider adultery or any kind of bad behavior when dividing assets in a divorce.

The courts “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 503(d)

In reality, the judges are human and will perceive bad behavior the same way anyone would. That being said, judges are often very jaded as to what actually constitutes contemptible behavior.  Garden variety adultery usually is not enough to sway a judge’s ruling.

So, again, adultery and divorce in Illinois do not have a legal connection under the current Illinois statute.

Dating after physical separation may not be most people’s idea of adultery but the expense of dating after separation but before the final divorce can still be considered a dissipation of assets.  In Illinois, you’re not divorced until you’re divorced.

Adultery and Maintenance In Illinois

The only possible defense to paying maintenance (formerly known as alimony) in Illinois is that the maintenance payor cannot afford to pay the maintenance and maintain themselves.  The court must consider “the needs of each party” 750 ILCS 5/504(a)(2) when ordering maintenance.

A party to an Illinois divorce cannot balk at paying maintenance while spending money on their own new romantic life. Without question, the same logic applies to an inability to pay child support.

Adultery and Children In Illinois

While adultery may be the cause of a divorce, children are purposely kept ignorant of the adultery. The standard language in the final documents usually forbid discussing adultery with children.

In the Allocations of Parenting Responsibilities and Parenting Time that I draft for my clients, I include two clauses:

“Neither party shall make derogatory or derisive comments about the other or any of the other’s family members. in the presence of the minor children, nor allow any other individuals to do so in the presence of the minor children.”

So, no talking about how the other party is a cheater, was dishonest, etc….at least in front of the children.

“Neither party shall expose the minor children to any immoral conduct or behavior.”

This means no lewd displays of affection in front of kids.  It could even mean don’t discuss immoral behavior such as adultery.

Furthermore, adultery will hardly ever be a consideration in deciding child custody or parenting time.

While it is often impossible to keep your children from meeting your ex’s paramour, you can include language in the Allocation of Parenting Responsibilities and Parenting Time such as:

Neither party shall introduce the children to boyfriends or girlfriends unless the party has been in a relationship with the boyfriend or girlfriend for at least (insert period of time).”

This language is really to keep children from meeting a parade of different lovers a parent has and the confusion that can cause.

In sum, your children can eventually meet the person who broke up your marriage and you are not supposed to criticize that person, either…at least in front of the kids.

Can You Sue The Person Your Husband or Wife Cheated With? 

You used to be able to sue your spouse’s lover in Illinois but it didn’t happen in divorce court.  I discuss the process of suing someone for alienation of affection in this article.

Is Adultery A Crime In Illinois? 

Yes.  Adultery is a class A misdemeanor in Illinois.

“A person commits adultery when he or she has sexual intercourse with another not his or her spouse, if the behavior is open and notorious, and

(1) The person is married and knows the other person involved in such intercourse is not his spouse;  or

(2) The person is not married and knows that the other person involved in such intercourse is married.” 720 ILCS 5/11-35

Good luck getting a police authority to make an arrest and a prosecutor to actually prosecute an alleged adultery.  Even if you could get someone else interested in adultery as a crime in Illinois, proving that the adulterous couple had “open and notorious” sexual intercourse will probably be impossible.

So, an adulterer is technically a criminal in Illinois but in the wake of United States Supreme Court cases that allow you to do what you wish in your own bedroom, Lawrence v. Texas, 539 U.S. 558 (2003), do not expect this particular Illinois criminal statute to ever be invoked or upheld.

If you’re going through a dissolution of marriage in Chicago, Illinois and are concerned how adultery will effect your divorce contact my Chicago law office to speak with an experienced Illinois divorce lawyer.