Posted on April 2, 2022

Reconciliation And Divorce In Illinois

Not everything works out in a marriage. Not everything works out in a divorce, either. Sometimes divorcing parties get back together in the middle of their divorce.

I applaud and encourage all the couples who try to have a second chance at making it work. But, I must warn my clients that reconciliation in an Illinois divorce has consequences and strategic considerations.

Why Is Reconciliation Important In An Illinois Divorce?

Divorce in Illinois happens only on the grounds that the parties have “[i]rreconcilable differences [which] have caused the irretrievable breakdown of the marriage” 750 ILCS 5/401(a)

“An irretrievable breakdown of a marriage has been defined as where either or both parties are unable or refuse to cohabit and there are no prospects for a reconciliation.” In re Marriage of Bates, 490 NE 2d 1014 – Ill: Appellate Court, 2nd Dist. 1986

To grant a judgment of dissolution of marriage in Illinois, first “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)

So, a divorce can not occur in Illinois if there hasn’t been a failed attempt at reconciliation or that a reconciliation attempt would not be in everyone’s (including the kids) best interests.

Requesting A Conciliation Conference In An Illinois Divorce

Any party, at any time can request from the court a chance to discuss reconciliation with their spouse.

“If the court concludes that there is a prospect of reconciliation, the court, at the request of either party, or on its own motion, may order a conciliation conference.” 750 ILCS 5/404(a)

If flowers, a heartfelt note or a grand romantic gesture has not made reconciliation a possibility, I don’t know why a divorcing person would think asking the judge to order a meeting could possibly help reconcile them with their beloved.

“The conciliation conference and counseling shall take place at the established court conciliation service of that judicial district or at any similar service or facility where no court conciliation service has been established.” 750 ILCS 5/404(a)

Cook County, Illinois does not have an “established court conciliation service” and neither does any other Illinois county, so far as I know. So, expect to be told to resolve your deep seated differences in the courthouse hall or via Zoom.

The party proposing reconciliation is likely to make A LOT of promises. If the reconciliation doesn’t dismiss the divorce, the other spouse can’t use those promises against the party that made them during the conciliation conference.

“The facts adduced at any conciliation conference resulting from a referral hereunder, shall not be considered in the adjudication of a pending or subsequent action, nor shall any report resulting from such conference become part of the record of the case unless the parties have stipulated in writing to the contrary.” 750 ILCS 5/404(b)

Even if a judge does entertain a request for a conciliation conference (I’ve actually never seen one of these), you’d have to repledge your undying love to your spouse…in front of their lawyer.

“The court, upon good cause shown, may prohibit conciliation or other process that requires the parties to meet and confer without counsel.” 750 ILCS 5/404(b)

What Happens If You Do Reconcile During Your Illinois Divorce?

The parties can appear at regular status dates to report to the court that they are working on their marriage. To save money and time, the parties can instead ask that they not be required to appear before the court for an extended period of time while they pursue reconciliation.

In Cook County, Illinois this extended abatement of an Illinois divorce court is called being “put on the reconciliation calendar”

“Reconciliation Calendar – There shall be established a reconciliation calendar for parties attempting to reconcile. Assignment to this calendar may be made by the judge to whom the case is assigned or the Presiding Judge, by the written agreement of both parties. The agreement shall specifically state that the parties are requesting that proceedings be suspended during the time they are seeking a reconciliation. The petition or agreement shall also be accompanied by a reconciliation plan which shall specifically state what the parties are doing in an attempt to reconcile. During this period, no progress shall be required of the case, except as hereinafter provided.” Cook County Court Rule 13.2(g)

No judge, in my experience, has ever required a “reconciliation plan” pursuant to this rule.

The reconciliation calendar will then be clear of court appearances for up to a year.

“All cases on the reconciliation calendar shall be called for status within one year, and if the matter has been on the calendar for twelve (12) months it will be dismissed or returned to the active calendar. If the case has been on the reconciliation calendar for less than twelve (12) months on the status date, then the court may continue the case on the reconciliation calendar for a period not to exceed twelve (12) months. Failure of the petitioner to respond to the status call shall result in a dismissal for want of prosecution.” Cook County Court Rule 13.2(g)(i)

My experience has shown that Cook County judges prefer a six month reconciliation period…followed by another six months…and then its “shit or get off the pot.” The case must be dismissed or must be prosecuted.

An Illinois divorce court can order counseling for either party during their reconciliation process.

An Illinois divorce judge can “[r]equire or recommend the respondent to undergo counseling for a specified duration with a social worker, psychologist, clinical psychologist, psychiatrist, family service agency, alcohol or substance abuse program, mental health center guidance counselor, agency providing services to elders, program designed for domestic violence abusers or any other guidance service the court deems appropriate.” 750 ILCS 60/214(a)(4) 

Post-Nuptial Agreement And Reconciliation After An Illinois Divorce

In lieu of divorce, parties often enter into a post-nuptial agreement so as to define the terms of their divorce should they, in fact, eventually get divorced.

You can enter into a post-nuptial agreement with any terms so long as those terms are not unconscionable.

“Our supreme court held long ago that a wife’s agreement to end her separation from her husband and dismiss her petition for divorce was consideration for her husband’s promise to pay her a certain sum of money if he became drunk or mistreated or abused her again.” In re Marriage of Tabassum and Younis, 881 NE 2d 396 – Ill: Appellate Court, 2nd Dist. 2007 (citations omitted)

A post-nuptial agreement is a contract. “The basic requirements of a contract are an offer, an acceptance, and consideration.  Consideration is defined as a bargained-for exchange of promises or performance.” In re Marriage of Tabassum and Younis, 881 NE 2d 396 – Ill: Appellate Court, 2nd Dist. 2007 (citations omitted)

Agreeing to not divorce someone is sufficient consideration to support a post-nuptial agreement.

“[P]arties’ agreement to discontinue divorce suit and resume marital relations was consideration to support their reconciliation agreement.” In re Marriage of Tabassum and Younis, 881 NE 2d 396 – Ill: Appellate Court, 2nd Dist. 2007 (citations omitted)

Risks After Reconcilition In An Illinois Divorce

If you are not divorced, all of the property acquired during the marriage is considered marital property.

“”[M]arital property” means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 5/503(a)

In Illinois, marital property gets divided…whether you had a petition for divorce already on file or not.

An Illinois divorce court“shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503

In dividing marital property equitably, the Illinois divorce court can consider “whether the contribution is after the commencement of a proceeding for dissolution of marriage or declaration of invalidity of marriage” 750 ILCS 5/503

A formal reconciliation could be argued to have erased the prior period of separation between the the parties.

Dissipation of marital assets can also be negated by a reconciliation of the parties.

“[D]issipation is to be calculated from the time the parties’ marriage begins to undergo an irreconcilable breakdown, not from a date after which it is irreconcilably broken.” In Re Marriage of Holthaus, 387 Ill. App. 3d at 375

It could be argued that a reconciliation restarts the period when “the parties marriage begins to undergo an irreconcilable breakdown.”

If one party to an Illinois divorce dies after the reconciliation, the other party cannot revive the divorce to pursue the fair share of their marital estate pursuant to the Illinois Marriage and Dissolution of Marriage Act.

“The reservation of rights in the reconciliation filed in the circuit court did not entitle plaintiff to an award after the death of her husband.” Howard v. Howard, 364 NE 2d 464 – Ill: Appellate Court, 1st Dist. 1977

The surviving spouse must pursue their portion of the deceased spouse’s estate pursuant to probate laws not divorce laws.

Of course, true reconciliation involves the dismissal of the Petition For Dissolution of Marriage and/or the Counter-Petition Of Dissolution Of Marriage. A dismissal of a Petition For Dissolution Of Marriage terminates any and all orders that had been entered by the court to that date.

A temporary orderterminates when the final judgment is entered or when the petition for dissolution of marriage or legal separation or declaration of invalidity of marriage is dismissed. 750 ILCS 5/501(d)(3)

If the reconciliation does not last after the dismissal of the divorce, the divorce case may not be revived but must commence anew.

The agreements from the first divorce process might survive, however. A marital settlement agreement’s “unambiguous statements clearly indicate the intent of the parties to be bound upon execution of the agreement, rather than upon approval by the court.” In re Marriage of Vella, 237 Ill. App. 3d 194, 199 (Ill. App. Ct. 1992)

So, a reconciliation that occurs after divorce agreements have been signed should include a new document striking those agreements. “When the divorce proceedings are abated, the parties may choose to ignore the agreement and thereby rescind it as they would any other contract.” In re Marriage of Vella, 237 Ill. App. 3d 194, 200 (Ill. App. Ct. 1992)

A new divorce filing date means the duration of maintenance must be recalculated because maintenance “shall be calculated by multiplying the length of the marriage at the time the action was commenced [with a statutory multiplier]” 750 ILCS 5/504

If you’re considering reconciling with your spouse, you’ll be making a delicate situation all the more delicate. There is no harm in knowing the risks and advantages of possible reconciliation. Contact my Chicago, Illinois family law firm to learn more about what can happen during an Illinois divorce reconciliation.

Share Article on

Facebook
Twitter
LinkedIn

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.

More about This Topic

Relevant Articles