Divorce alternatives 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. […] either stop the divorce or force one party to file.  Either party can suggest one of the numerous alternatives to divorce if divorce does not feel like the right solution at this […]

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Alternatives To Divorce In Illinois

Divorce alternatives in Illinois

Divorce is a big step. Filing for divorce sets a series of events in motion that lead to division of assets, the fissure of a family, support payments and finally…divorce.  Whether it just sounds overly unpleasant or it’s just too much to deal with right now, you may want to look into the available alternatives to divorce in Illinois.

There are many things you can do in pieces to extricate yourself from a relationship that don’t involve immediately involving the court system via a divorce filing.

Counseling 

Marriage counseling is the most obvious alternative to divorce.  A marriage counselor usually walks a couple through their issues and suggests new behaviors to possibly improve the relationship.

Do not expect marriage counseling to change the underlying problems in your relationship.  Marriage counseling typically improves communication and nothing more. Improved communication may be enough to stave off divorce but it also can turn into an airing of grievances.

Marriage counseling often leads to individual therapy which allows for even more emotional breakthroughs that can you lead you further away from…or closer to divorce.

Mediation 

You don’t need to have a divorce on file to hire a mediator.  Issues such as asset division, parenting time, child support and spousal maintenance can all be mediated and negotiated without a pending divorce.  A divorce-less mediation has a few drawbacks.

  • You have no advocate during mediation. You are relying on the mediator to be “fair”
  • You have no way to be sure that your spouse’s representations regarding assets or income is factual. If your spouse is what we call a “W2 employee” and has limited assets, basic disclosure may be enough for a mediation.
  • The final mediated agreement is not binding unless your disclosure was so complete as turn the mediated agreement into an antenuptial or postnuptial agreement.

Antenuptial or Postnuptial Agreements in Illinois

You can set up the divorce without getting divorce with a. postnuptial or antenuptial agreement.  A post-nuptial agreement sometimes releases all the tension of a divorce by predetermining what will happen if the parties, in fact, get divorced.

If your marriage is having issues such as cheating, drug abuse or gambling.  You can even create a clause in your postnuptial agreement regarding that issue.  For example, “if husband has sexual relations outside of the marriage, wife shall receive an extra $ 1000 a month in maintenance.”

A postnuptial agreement can be a contract between two married people about the following:

“   (1) the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

    (2) the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

    (3) the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;

    (4) the modification or elimination of spousal support;

    (5) the making of a will, trust, or other arrangement to carry out the provisions of the agreement;

    (6) the ownership rights in and disposition of the death benefit from a life insurance policy;

    (7) the choice of law governing the construction of the agreement; and

    (8) any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.”

Both parties need to have attorneys for a post-nuptial agreement to be considered a valid agreement not subject to being voided due to duress or unconscionability.

While prenuptial agreements and postnuptial agreements require disclosure of assets or waiver of disclosure in order to be held valid and enforceable, a postnuptial agreement is usually easier to validate.  If one party lived with the other party, they must have at least a somewhat intimate knowledge of their finances.

Moving Out Without Divorcing

This is America.  You can move where ever you want to and you do not need your spouse’s permission to leave the marital home.  Maybe moving out will give you peace of mind and some perspective on your relationship. Maybe moving out will show your spouse that you truly do insist on changes if they want to remain with you.

If you do move out of the marital home, you are not obligated to pay anything for your original residence outside of the financial obligations in your name.  So, if you were renting or were on the mortgage, you’d still have to pay those bills in your name or your credit will be effected at best and you’ll be foreclosed upon or evicted at worst.  You have no specific duty to support your spouse if you are physically separated and there is nothing filed with the local county clerk.

You can even move out of the marital home and take your children.  Your spouse can call the police but, legally, you cannot kidnap your own children.  The police will simply advise your spouse to file something in family law court…and your spouse probably will very soon…and your kids will be back in the marital home after a court’s order is entered.

If your spouse does file something in family law court (there are more things than just divorce that one can file). A series of events will start where you will have obligations to your spouse via Illinois’ domestic relations statutes.

Legal Separation in Illinois

Legal separation is a divorce without the divorce.

In Illinois, you can file for legal separation and ask for child support, maintenance, and contribution to marital expenses.

The only thing you can’t do under a legal separation is divide property…unless the parties agree to it.

 “If the court deems it appropriate to enter a judgment for legal separation, the court may approve a property settlement agreement that the parties have requested the court to incorporate into the judgment, subject to the following provisions:  (1) the court may not value or allocate property in the absence of such an agreement; (2) the court may disapprove such an agreement only if it finds the agreement is unconscionable; and (3) such an agreement is final and non-modifiable” 750 ILCS 5/402(b)

I have been practicing family law for 15 years and I have filed several petitions for legal separation. Every last one of them turned into a divorce eventually.  Because when the other party is required to respond to the petition, they simply file their own counter-petition for dissolution of marriage.

Annulment in Illinois 

Annulments are hard to get in Illinois.  To ask an Illinois court for an Annulment one must file a Petition for Invalidity of Marriage.  Petitions for Invalidity of Marriage are only granted if

   “(1) a party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity or because of the influence of alcohol, drugs or other incapacitating substances, or a party was induced to enter into a marriage by force or duress or by fraud involving the essentials of marriage;
(2) a party lacks the physical capacity to consummate the marriage by sexual intercourse and at the time the marriage was solemnized the other party did not know of the incapacity;
(3) a party was aged 16 or 17 years and did not have the consent of his parents or guardian or judicial approval; or
(4) the marriage is prohibited.” 750 ILCS 5/301

So, if you got married when you were drunk or had your father-in-law’s shotgun in your back, you can ask for an annulment in Illinois.

If one party was impotent or simply unable to have sex…and it was a secret, you can ask for an annulment in Illinois.

If you married a child…and the child didn’t have their parents’ permission, you can ask for an annulment in Illinois. If you can’t tell, these all get weirder and weirder and therefore more unlikely to be the actual basis of a judgment for invalidity.

But 99% of judgments of invalidity are granted in Illinois because you shouldn’t have been married in the first place…because someone in the marriage was already married when the 2nd marriage was solemnized.

If both parties agree to the annulment, you’ll probably get the annulment granted even though you shouldn’t. Some judges don’t ask a lot of questions because the reasons for annulment (as you can see above) are embarrassingly personal.

That being said, do not lie in order to get an annulment.  It can always come back to haunt you. Your invalidation of your marriage could be voided…and you could be declared married again.

Almost all of these options become moot if the other party wants a divorce.  When someone files for divorce, sooner or later the divorce will be granted.  But, even if a petition for divorce is filed, there a still a lot of things you can do to put that divorce on hold or slow down the divorce process.

If you’d like to discuss all your options, divorce, annulment, legal separation, postnuptial agreements, Etc., contact my family law firm to speak with an experienced Chicago family law attorney.