Posted on August 14, 2022

No-Fault Divorce In Illinois

Illinois divorce law is peppered with phrases that you kind-of/sort-of think you might already understand. “No-Fault Divorce” is one of those legal terms where you presume it means that neither spouse needs to show adultery, domestic-violence, or abandonment in order to get divorce…but you might not be 100% sure. So, you look up “what is no-fault divorce in Illinois?”

A no-fault divorce is “[a] divorce in which the parties are not requires to prove fault or grounds beyond a showing of irretrievable breakdown of the marriage or irreconcilable differences.” Black’s Law Dictionary (11th ed. 2019)

In the old days, Illinois was NOT a no-fault divorce state. “[T]he Illinois Marriage and Dissolution of Marriage Act, our legislature considered and rejected the “no-fault” divorce concept that has been adopted in many other jurisdictions, including California. Illinois appears to be one of three States retaining fault grounds for dissolution of marriage.” Hewitt v. Hewitt, 394 NE 2d 1204 – Ill: Supreme Court 1979

Marriage, in Illinois and other states, used to be perceived as a sacred, religiously-based institution.

“[D]ivorce was viewed as a uniquely personal matter, oftentimes involving religious and moral precepts, courts were reluctant to have others speak for an incompetent adult in such situations. The rule reflected the view that “marriage is sacred and that only the most serious of marital offenses should be grounds for divorce.” Kurt X. Metzmeier, Note, The Power of an Incompetent Adult to Petition for Divorce Through a Guardian or Next Friend, 33 U. Louisville J. Fam. L. 949, 951-52 (1995). This view also went hand-in-hand with the policy that ending a marriage required a legal injury in which the court would assign blame or fault to a specific spouse. The rule, therefore, comported with those states in which the sole grounds for divorce laws were predicated upon concepts of fault and injury, as was the case in Illinois prior to the enactment of the no-fault provisions of the Illinois Marriage and Dissolution of Marriage Act.” Karbin v. Karbin ex rel. Hibler, 977 NE 2d 154 – Ill: Supreme Court 2012

The “fault and injury” needed to be proven in order to get a divorce in Illinois required an evidentiary hearing. The facts that had to be proven under Illinois’ old fault-based divorce regime were: impotence, drunkenness, drug addiction, poisoning your spouse, physical or mental cruelty, conviction of a felony, and/or transmission of a sexually transmitted disease.

Delving into these issues in open court under oath would just rub salt into the already gaping wound of a failed relationship.

In 1984, the Illinois legislature allowed the all-purpose grounds of “irreconcilable differences” as a basis to get a divorce in Illinois…but only after being separated for two years (or six months by agreement)

“The [Illinois] State legislature has concluded that “no-fault” grounds for dissolution of a marriage are in the public interest.” In re Marriage of Semmler, 481 NE 2d 716 – Ill: Supreme Court 1985

“Under the no-fault provisions of section 401(a)(2), dissolution is predicated upon a finding of “irretrievable breakdown” of the marriage due to “irreconcilable differences.”” In re Marriage of Kenik, 536 NE 2d 982 – Ill: Appellate Court, 1st Dist. 1989

“[T]he key elements which must be proved under the no-fault provision are the irretrievable breakdown of the marriage and the impracticability of reconciliation” In re Marriage of Semmler, 481 NE 2d 716 – Ill: Supreme Court 1985

“With the enactment of the no-fault provisions in 1984, the General Assembly signaled a shift in the policy regarding the grounds which must exist in order for a dissolution to be granted. The passage of the no-fault provisions reflected a dissatisfaction with the traditional requirements of proving fault to obtain a divorce. Indeed, the comments of the legislation’s sponsor at the time reveal that the concept of fault in divorce actions had led to a wide variety of problems, including parties “perjur[ing] themselves on the stand in order to find fault grounds, when in fact, they just want to get out [of the marriage].” See 83d Ill. Gen. Assem., Senate Proceedings, May 27, 1983, at 226 (statements of Senator Marovitz). According to the sponsor, Illinois’ enactment of no-fault divorce allowed people “to part with dignity.” Id. at 226-27.” Karbin v. Karbin ex rel. Hibler, 977 NE 2d 154 – Ill: Supreme Court 2012

“[T]he [Illinois] legislature’s adoption of no-fault divorce was a significant change in Illinois public policy and gave individuals the freedom and dignity to choose whether to end their marriages.” Blumenthal v. Brewer, 24 NE 3d 168 – Ill: Appellate Court, 1st Dist., 5th Div. 2014

In 2016, Illinois Public Act 099-0090 was passed. All the previous grounds for divorce were eliminated and now the only grounds for divorce in Illinois is irreconcilable differences.

“The court shall enter a judgment of dissolution of marriage when at the time the action was commenced one of the spouses was a resident of this State or was stationed in this State while a member of the armed services, and the residence or military presence had been maintained for 90 days next preceding the commencement of the action or the making of the finding:

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.” 750 ILCS 5/401(a) (emphasis mine)

Now, in order to get a divorce in Illinois, an Illinois divorce court has to find that one of the spouses has lived in Illinois for 90 days OR that “irreconcilable differences have caused the irretrievable breakdown of the marriage.”

Proving irreconcilable differences doesn’t require anything beyond a divorcing spouse to say, “Our differences were irreconcilable,” or the more natural equivalent, “We tried to make our marriage work but we could not make our marriage work.”

No mention of fault or bad behavior by either spouse is required to get a divorce in Illinois anymore. Hence, Illinois is a no-fault state for divorce.

If you need to get a divorce in Illinois, you need someone who understands what every legal term means that could possibly impact an Illinois divorce. Contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.

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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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