In the old days you couldn’t just ask for a divorce because you wanted one. You needed “grounds” or a tangible reason to be divorced. The grounds for divorce in Illinois would be adultery, desertion, mental cruelty, imprisonment, etc. This meant that you’d have to prove these grounds to a judge before a divorce would be granted. So, people would hire private investigators to take pictures of their spouse having an affair, etc. Obviously, this made the divorce process worse NOT better.
This is purposely a very vague term and the statute does not define it exactly except to say, “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)
During the final date of a divorce hearing, I always clarify the term for the client on the record by saying, “Is It correct to say that the cause of your divorce is irreconcilable differences? That is to say, you two tried to work it out but you couldn’t work it out.”
This perfunctory requirement for an Illinois divorce makes Illinois, effectively, a no-fault divorce state.
A no-fault divorce is “a divorce in which the parties are not required to prove fault or grounds beyond a showing of the irretrievable breakdown of the marriage or irreconcilable differences” Black’s Law Dictionary (11th ed. 2019)
Even though the term irreconcilable differences is vague and there are no other grounds for divorce, you still have to prove irreconcilable differences.
If you’ve been separated for more than 6 months, the statute says that is automatically proof of 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)
If you’re among the rare people that haven’t been separated for 6 months, you can just testify, “We don’t get along and can’t get along” and that should be enough for a judge to make a finding of irreconcilable differences.
6 Months Separation Before Divorce in Illinois
Many people believe that a 6 month separation is some kind of additional requirement for a divorce in Illinois. If you read the statute as it is written today you will find that there is no actual separation time requirement.
There used to be a two year separation requirement that could be waived by agreement if you had at least 6 months of separation. Now under the new Illinois law there is no actual, effective separation time requirement.
Even under the old two year separation rule, courts have even stated that you can prove irreconcilable differences without a period of living separately and apart.
“The…separation requirement can be satisfied even where the couple live in the same house because irreconcilable differences can be realized between the couple without living in separate residences.” In re Marriage of Gorman, 671 NE 2d 819
No Fault Divorce In Illinois?
In 1984 the Illinois Legislature passed a series of laws eliminating the concept of one spouse being “at fault” for the divorce. Since that date, Illinois had joined the ranks of the many states who are now considered to be “no fault” states.
So, it is no longer required that one party’s bad behavior be brought up when asking for a divorce. A couple’s dirty laundry can remain unaired if they so choose.
But, that does not mean that bad behavior by either party is irrelevant. A party’s bad behavior is certainly a factor in all parenting considerations. Additionally, money spent on drugs, paramours or gambling can be recovered by the other party in the final division of assets.
What’s more, bad behavior by one party can color the judge’s opinion of that party and in theory, the judge’s temporary and final orders. When a Cook County Domestic Relations judge is seeing 50 people a day…you don’t want to stand out due to bad behavior.
If conclusion, the term “grounds for divorce” is essentially antiquated as are all of the former grounds for divorce such as “abandonment” and “adultery.” They have no effect and if you want abandonment or adultery to effect your divorce, you need to present those matters as evidence for a purpose other than just getting the divorce itself (example: to prove dissipation of assets or alienation from the children)
If you’d like to ask more questions about the grounds for divorce in Illinois, contact my Chicago, Illinois law office to speak with an experienced Chicago divorce lawyer.