Your Complete Guide to Getting a Divorce in Illinois

by Lauren Cook-McKay | Last Updated: November 9, 2021

Divorce Laws | Residency Requirements | Grounds for Divorce | Divorce Attorney | Filing for Divorce | Online Divorce | How Long? | Divorce Costs | Custody | Child Support | Alimony | Division of Asset | Common-Law Marriage | Alternatives

 

Deciding to end your marriage isn't something that is easy. Regardless of your reason for seeking a divorce, deciding to go forward with it can be one of the most stressful life events. Even if it's for the best, it's never easy closing a chapter in your life and starting a new one.

Making the decision to divorce your spouse is only the first step. Pursuing the divorce and all the steps that it entails brings on a whole new set of challenges. There's a lot to consider, from the various divorce laws in Illinois to custody and alimony considerations.

When you're ready to move forward with your divorce, our complete guide to getting a divorce in Illinois can help guide you.

Types of Divorce Laws in Illinois

In the United States, each state handles divorces a little differently. Some states require there to be a legitimate reason for the divorce, whereas others can pursue a divorce because the marriage is irretrievably broken.

Each state has its own laws and regulations to ensure that each divorce goes as smoothly as possible, even the tricky ones. Illinois has specific residency laws for those looking for a divorce and several laws in place so the courts can decide how to divide everything.

Marital Property Laws

In some divorce cases, spouses can agree on how to divide everything, and there's no issue. When two people can't come to terms that they both agree with, the division of marital property law helps. Illinois is an equitable property state, not equal.

This means that the property that you and your spouse share will not be split equally but fairly. This equitable division law helps the courts make rational decisions surrounding divorce.

Contested Divorce

Contested divorces are the most common. A contested divorce is when both or one spouse doesn't agree with the terms laid out in the divorce agreement. Or, both spouses don't agree on every single aspect of the divorce.

Most of the time, contested divorces happen when children under 18 are involved. When parents divorce, there's always going to be one parent that's in the child's life more than the other; hence tensions arise. There are plenty of other reasons divorce can be contested too.

Pros & Cons

Pros
  • You can fight for what you feel you deserve
  • If you and your spouse can not get along, this will help move through the process with 3rd parties
Cons
  • You may have to go to trial
  • These types of divorce tend to take much longer
  • It's more expensive than uncontested or simplified divorces
  • Typically more stressful

Uncontested Divorce

Uncontested divorces aren't as common but are ideal. An uncontested divorce happens when both spouses are 100% in agreement on everything laid out in their divorce agreement. This means who gets the kids when assets and alimony considerations if applicable.

These divorces have much less tension than a contested divorce since there's nothing to argue about when it comes to who gets what. Uncontested divorces tend to move faster and cost less money since there's less time spent dealing with lawyers and changing the terms.

Pros & Cons

Pros
  • Uncontested divorces save you time and money
  • Drama free way to end the marriage
  • These divorces tend to process quicker
  • You can avoid taking the divorce to trial
Cons
  • Requires the ability to navigate the divorce process
  • If domestic violence is involved, a contested divorce is safer
  • Neither spouse can demand additional spousal support or child support unless the other agrees.
  • Both spouses give up the right to appeal the terms of the divorce in the future.
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Joint Simplified Divorce

The third type of divorce in Illinois is a joint simplified divorce. You can only apply for this type of divorce when you've been married for less than eight years, have no minor children together, and have minimal assets. The other requirements for a joint simplified divorce include:

Joint simplified divorce cases aren't the easiest to qualify for, but you may want to choose this route if you can. This helps to avoid a trial.

Key Takeaways
When filing for divorce in Illinois, you'll either apply for a contested or uncontested divorce. Uncontested divorces are less common and happen with both spouses agreeing on everything. Contested divorces have more tension and tend to take longer to process since there are disagreements.

Residency Requirements in Illinois

As with other states, you have to meet their residency requirements to file for divorce in Illinois. Before filing for divorce in Illinois, you or your spouse must be a legal resident of the state for at least 90 days.

For military service members, you can claim Illinois residency, even if your official address is elsewhere, after being stationed in Illinois for 90 days. In addition to living in the state for 90 days, you must be separated from your spouse for a period of time. It is either six months or two years, depending on the type of divorce you're applying for.

Something important to keep in mind is that if you and your spouse have children, Illinois cannot hear custody agreements until the children are residents for six months.

So, even though you've lived in Illinois for 90 days and are ready to file for divorce, you may want to hold off for another 90 days. This way, you can ensure that the custody agreement can be heard in Illinois and not in whatever state you moved from.

Key Takeaways
To file for divorce in Illinois, you or your spouse must be residents for at least 90 days. Even if you've lived there for 90 days, the courts can't assess the child custody agreement until the kids have been residents for six months.

Grounds for Divorce in Illinois

When filing for divorce, you may be asked on what grounds. Grounds for divorce are simply the reason for dissolving your marriage. In some states, there's only a no-fault divorce. In Illinois, you can file for a no-fault divorce or a fault-based divorce.

No-Fault

A no-fault divorce in Illinois means that neither you nor your spouse has to give a specific reason for the divorce.

All you have to state is that the marriage is irretrievably broken. Irretrievably broken means that both you and your spouse agree that there's nothing either of you can do to repair the marriage.

You still need to meet the 90-day residency requirement, but you also must be separated from each other for two years.

Fault-Based

A fault-based divorce means that you have a specific reason for the divorce. When filing for this type of divorce, you must state the grounds you have for the divorce, meet the 90-day residency requirement, and have been separated from your spouse for six months or more. Examples of grounds for a fault-based divorce in Illinois include:

Many people choose to list at least one fault for the divorce since it can speed up the process, separation for only six months compared to two years. An important thing to know is that the courts rarely, if ever, take faults into consideration when dividing marital property.

Key Takeaways
You can file for a no-fault or fault-based divorce in Illinois. If you're filing for a no-fault divorce, you have to be separated for two years and only six months for a fault-based divorce.

Using an Illinois Divorce Attorney

When you think of divorce, you probably think that everyone hires a divorce attorney. The thing is that while most people hire a qualified attorney to handle their divorce, you don't have to. If you and your spouse can handle your divorce civilly and quickly, hiring a divorce attorney may not be worth it for you.

Divorce attorneys are fantastic for helping your divorce run as smoothly as possible, especially if you and your spouse are at odds. Attorneys are very common in contested divorces since both spouses can't seem to come to an agreement on their own. Attorneys can help you and your spouse come to an agreement that both deem fair in the divorce.

There are a few instances when hiring a divorce attorney will be in your best interest even if you and your spouse get along. When children are involved, things can get tricky. Hiring a lawyer to assist in coming to a custody and child support agreement you're both happy with can prevent an unfair agreement. The same goes for alimony payments.

It's hard to say whether you should or shouldn't hire a divorce attorney to handle your dissolution of marriage. The rule of thumb is that if the divorce is contested, an attorney is advisable. If children or alimony payments are being considered, hiring an attorney is a good idea.

READ MORE: Divorce advice for men or Divorce advice for women

What Makes a Good Divorce Attorney?

If you're interested in hiring a divorce attorney, you'll want to make sure that you're hiring a good one. What makes a good divorce attorney, you ask? These are some qualities you'll want to look for in a high-quality attorney:

You'll be able to find out some of these qualities based on their website if they have one. Most lawyers have their qualifications listed on their website as well as their specialty.

Other qualities you'll need to meet with them in person or over the phone to see. Finding out how many divorce cases an attorney has handled in the past and their success rate can help you determine if they're a good choice for you.

Learning about their past cases and success rate can also help you determine if they can handle multiple cases at once while giving the proper support to each one.

Finding an attorney who can set realistic expectations with you is important. You don't want to work with an attorney who gets your hopes up too high, only for them to come crashing down. When an attorney can be realistic with you, you're much more likely to be happy with the end result.

How to Find a Good Divorce Attorney

Knowing what you're looking for in an attorney and finding one are two different games. How do you go about finding and then hiring a great divorce attorney?

Nowadays, the main way people look for a divorce attorney is online. Doing a quick Google search for divorce attorneys near you will yield plenty of results. From there, you can look at their websites and determine if you want to set up an initial consultation with them or give them a call.

Remember that if you're planning to look online for a divorce attorney, you're as specific as possible. You'll want to use terms like divorce and family law to ensure you're looking at lawyers that have experience in what you need.

Another way to find a great divorce attorney is through word of mouth. If there is anyone you know, friends, family, or acquaintances that's gotten a divorce, asking them about the attorney they used can be beneficial. People aren't known to recommend anything or anyone they didn't have a good experience working with.

If someone recommends an attorney to you that they've used in the past, they're worth looking into. Word of mouth is also helpful in weeding out the attorneys that may not be able to help you.

Interview Questions for a Divorce Attorney

After you've found an attorney or two that you're interested in hiring, meeting with them is the next step. This initial consultation is perfect for you and the attorney to decide if working together is going to work.

It may seem odd to interview an attorney since they're the professional, but you want to make sure you're hiring the best one for you before you spend a substantial amount of money on them. Here are some of the best questions you'll want to consider asking in your initial consultation:

Many of these questions may get answered naturally as you and the attorney discuss your case. As you two speak, you may find that more questions come up, and that's okay.

Something you'll want to keep in mind is that if you plan on asking them how much your divorce will cost, you may not get an accurate number. They should be able to tell you how much their hourly rate is, but additional costs may vary depending on your situation.

Don't be surprised if they ask you questions too. Since you'll be working together, they want to make sure they can handle your divorce with the care it deserves. That means they're going to have questions for you too.

Is the Initial Consultation Free?

Truthfully, it depends on the lawyer or law firm. While an initial consultation fee is another expense for your divorce, these meetings are incredibly important when deciding which attorney to go with.

Whether an attorney charges a fee for an initial consultation depends. Some attorneys only charge a flat rate regardless of how long the meeting is. Some will charge their normal hourly rate, and others don't charge anything at all.

The best way to find out if the attorney you're meeting with charges for the initial consultation is to ask. When you're setting up the meeting, it's completely normal to ask about this. That way, you're not expecting it to be free and then blindsided when you receive a bill later on.

Is the Meeting Confidential?

While the cost of lack thereof for an initial consultation with an attorney may vary, confidentiality doesn't. Meeting with an attorney to discuss your case grants you attorney-client privilege, even if you haven't officially hired them yet.

The initial consultation is the time to see if you want to hire that attorney. They will be acting as if they're already working for you to show you what it's like having them as an attorney. An attorney will always keep information about your case confidential. Even if you choose to go with another attorney, they can't disclose any information about your case to anyone.

Pros of Using an Attorney

As with most things in life, there are pros and cons. When you're getting ready to start a new chapter of your life, there are several benefits to using an attorney. Here are some of the most significant pros to hiring a divorce attorney:

Cons of Using an Attorney

While there are significant pros to hiring a divorce attorney, there are some significant cons too. Here are the major cons to hiring an attorney for your divorce:

Key Takeaways
Whether you need to hire an attorney for your divorce or not will depend on several factors. Hiring an attorney can be beneficial so that you have someone looking out for your best interests throughout the process.

Filing for Divorce in Illinois

Regardless of your reasoning for ending your marriage, there are some steps that you need to take before you can be legally free from your spouse. Unfortunately, it's a little bit more complicated than simply showing up to the courthouse with signed documents, even if you and your spouse are in agreement on everything.

Filing for divorce is the beginning. Filing involves every step in the divorce process, from getting all your documents in order, serving your spouse, and officially starting the divorce process.

Before you can begin the paperwork to start your divorce, you'll need to decide if you're going to pursue a no-fault divorce or a fault-based divorce. Knowing this will get you started.

Pro Tip: The information below is perfect for you to get an overview of the divorce filing process and also use as a guide if you will be filing for divorce on your own. However, if you are using an attorney, their team will typically be taking care of these steps as part of their proper representation of you as a client.

Preparing Your Divorce Forms

Before your petition for divorce ends up on a judge's desk, you'll need to gather and prepare all the necessary forms. Regardless of the county, you live in, Illinois, you'll fill out one of two forms. There's the petition for the dissolution of marriage with children and one without children. The Illinois courts have both documents available on their website.

Depending on whether you have children or not, you'll have additional forms to fill out and prepare. If you have children, you'll need to fill out a parenting plan before you even file. This may change throughout the process, but it needs to be included in your initial filing.

Another important thing to note about preparing your Illinois divorce forms is that depending on where you live, you may be asked to provide additional forms in the initial filing besides the standard petition for dissolution of marriage. Luckily, on the Illinois Supreme Court website, they have links to each country and their separate requirements.

To give you an idea of the additional forms you may need to fill out depending on where you live, here are some of the documents required for residents of Cook County:

It's best to check with the county clerk of your county to ensure you've filled out all the necessary paperwork before filing. A simple phone call or website search should help you determine what additional forms may be required.

If you're planning on filing for a joint simplified divorce, you have a separate form to fill out. You'll need to fill out the Joint Simplified Dissolution of Marriage form. These tend to take less time than a traditional divorce and even those that are uncontested and without children.

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We reviewed, rated, and ranked the best online divorce services available and our #1 choice is 3StepDivorce.


Visit 3StepDivorce Read Our Review
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Filing Your Divorce Forms

After you've gathered and prepared all the necessary forms to initiate your divorce, you're ready to file for divorce officially. As the one filing for divorce, you're known in the courts as the petitioner. Your spouse is known as the defendant or respondent.

You'll need to head down to the country clerk to file your paperwork. Most of the time, they'll make copies of the documents so that they have one, you have one, and then another copy for serving your spouse.

Not all courts are the same, so they may not provide you with your own copy. It's best to make a copy for yourself and your records on the off chance they don't provide you with one.

Like other states, you'll be asked to pay a filing fee when you file for divorce. In Illinois, this fee will vary from county to county. Generally, the filing fee in Illinois ranges from $200 to $400. If you live in Cook County, where Chicago is, the filing fee for divorce paperwork is $388.

If these numbers are a little steep for your pockets, you can try to have the fee waived. The state of Illinois offers a fee waiver form where you can request to have the filing fee reduced or completely removed.

Serving Your Spouse

After you've taken steps to prepare and then file your divorce forms, the next step is to notify your spouse. This is commonly referred to as serving your spouse. Most of the time, your spouse knows that you're going to be filing for divorce, but serving them is when they officially receive their copy of the petition for dissolution of marriage and have to respond accordingly.

You cannot serve the divorce paperwork to your spouse on your own in Illinois. You'll need to use someone from the sheriff's office, a process server, or anyone from a third party that's over the age of 18.

In Illinois, once you've served your spouse, they have 30 days to respond. If they don't respond in this timeframe, the divorce can continue as planned. This can only happen as long as your spouse has officially been served. You'll know they received the paperwork when you get a receipt of delivery.

If your spouse cannot be located, is in prison, or is on deployment with the military, you'll need to use an alternative method to serve your spouse. Mailing the divorce papers is allowed in these circumstances, as well as notification of divorce through publication in a newspaper.

Financial Disclosures

Most counties in Illinois require both spouses to fill out and file financial disclosures after the initial filing and the respondent responding to being served the paperwork. Financial disclosures help streamline the process of the judge deciding how to divide all marital property equitably.

You can find the financial affidavit form on the Illinois Supreme Court website. With the standard financial affidavit form, you'll both include copies of your pay stubs as proof of income and any documentation showing your debt.

There are other specific forms that go along with your financial affidavit that layout healthcare benefits, retirement benefits, real estate, motor vehicles, and other assets that have financial value. Each county may have varying requirements, so it's important to check with your county's clerk of courts.

Key Takeaways
Filing for divorce in Illinois requires four crucial steps. You'll need to prepare the petition for dissolution of marriage, file, serve your spouse, and then fill out financial disclosures to help streamline the divorce.

Online Divorce in Illinois

No two divorces are exactly alike. Even two people going through contested divorces won't have 100% of the same issues or circumstances.

One of the best resources for those interested in ending their marriage is to utilize an online divorce service. These are great tools for getting you started in the divorce process and even better for spouses who are pursuing an uncontested divorce.

Online divorce services aren't entirely online like the name suggests, though. These services give users all the resources they need to begin their divorce. You can think of these services as a guide. They'll provide you with information about all the documents you'll need to fill out, how to file, and other guidance along the way.

How to Qualify for an Online Divorce in Illinois

Anyone who is doing an uncontested divorce can use an online divorce service in Illinois. Since these services are more like a guide than an official divorce granting service, they're perfect for almost everyone in this situation.

Online divorce services are only for those going through an uncontested divorce. They're only for an uncontested divorce because most people who choose to use an online divorce service don't want to hire a lawyer and just need help with the complicated paperwork.

Best Online Divorce Services
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Do You Still Need to Go to Court?

The simple answer is yes. You will still need to go to court when getting an online divorce in Illinois. The good news is that even though you'll need to appear in court, it's generally only one time, and it's to finalize your divorce in front of the judge. Now, if your case requires more than one court hearing, you'll still need to be present at all of them.

Key Takeaways
Online divorce services are great tools for helping people have a more affordable divorce. They're a great guide for those pursuing an uncontested divorce since they provide all the paperwork and guidance needed before you finalize your divorce in front of a judge. We recommend 3StepDivorce learn more >>

How Long Does It Take to Get a Divorce in Illinois?

As we mentioned earlier, no two divorces are exactly alike. Therefore, knowing how long your divorce will take to finalize in Illinois is hard to pinpoint.

Once you've met the residency requirements and filed all the necessary paperwork, there are several factors that go into how long or short your divorce timeline will be. Some divorces take as little as two months, and others will take as long as a few years, depending on how contentious it is.

You'll want to serve your spouse as quickly as possible after filing for divorce. From the date of delivery, your spouse has 30 days to respond. From here, there's a six-month cooling-off period. The courts allow this time for both parties to reconsider the divorce. This can be waived via a written statement to the courts.

In Illinois, you can expect your divorce to take at least a few months. However, there are factors that will cause your divorce to take longer and factors that can shorten the timeline.

Factors That Increase Your Divorce Timeline

There are factors that are out of your control when it comes to how long your divorce will take, and there are some that you can control. Factors that can increase your divorce timeline include:

Factors That Decrease Your Divorce Timeline

Now that you know what can increase your divorce timeline, let's take a look at what factors can decrease your timeline:

Key Takeaways
Getting a divorce in Illinois can take as little as a few months to as long as a few years to finalize. How long your divorce will take depends on several factors, including how contested the divorce is, if children are involved, and more.

Divorce Costs in Illinois

This probably isn't a surprise to you, but divorces aren't cheap. There are some instances where getting a divorce is more affordable than others, but they'll still cost you a pretty penny. When you're considering divorcing your partner, knowing the various costs you may incur throughout the process can help you better prepare for the process that lies ahead.

The first fees you'll incur when filing for divorce in Illinois are the filing fees. As mentioned earlier, these can cost you anywhere from $200 to $400, depending on the county you live in. The average filing fee is $289. You may be able to have these reduced or waived if you cannot pay them.

Depending on your situation, you can expect your divorce to cost anywhere from $13,000 to well over $100,000 in Illinois!

Court Fees

Everyone going through a divorce will have to handle court fees. These are generally the initial filing fees. Since they're the filing fees, the petitioner is the one who typically pays them.

These are a couple of hundred dollars in Illinois, so you'll want to be prepared to pay those before heading to the courthouse and file. There are some instances when the other spouse, the respondent, will cover the cost of the filing fees for the petitioner. Granted, this is usually only in uncontested divorces.

To be sure of the filing fee in your county, you'll want to check with your county's clerk of courts website or give them a call.

Attorney Fees

If you're not planning on hiring an attorney, then the cost of your divorce will be much cheaper than someone who hires one. When hiring an attorney, you're going to have to pay them. Attorney fees include their hourly rates and other expenses they may charge throughout the process.

How much an attorney charges an hour depends on the attorney and, sometimes, the firm they work for. The best way to find out how much you'll be paying your attorney an hour is to ask. You'll want to ask before hiring them so that you can financially prepare.

In Illinois, the hourly rate for a family law attorney can be anywhere from $200 to $400. There may be some that charge more per hour, but the average hourly rate is $284 per hour for the most part.

Besides your divorce attorney's hourly rate, there may be other fees you have to pay during the process. You may want to ask about any other potential fees they may charge when you're in your initial consultation. Some of the additional attorney fees you may be expected to pay:

Even if an attorney has their hourly rate listed on their website, it's unlikely that the additional costs, if any, will be listed. Be sure to ask about other potential fees before you start working with an attorney, so you're prepared.

Litigation Costs

Litigation is one of the most expensive parts of getting a divorce, besides hiring an attorney. When you and your spouse both have attorneys, litigation is where all the discussions will take place between the four of you.

During litigation meetings, you, your spouse, and your respective attorneys will bring to the table different terms for the divorce and give the other an opportunity to agree to disagree. The way that litigation costs start to add up is when you have to have multiple litigation sessions.

Contested divorces rarely come to an agreement that both parties are happy with after only one litigation session. It's possible they won't come to a deal after two or three sessions too. It typically takes a few, and possibly many more, depending on how contentious the situation is.

Attorney fees are expensive as it is, but when you're going to litigation session after litigation session, that's when you start to see the divorce cost add up. When spouses can't come to an agreement quickly, that's when you start to see divorces costing closer to $50,000 per spouse.

When it comes to who pays for litigation, both spouses often split the cost evenly. There are situations where one spouse makes more money and offers to pay for a more significant portion, but it's utterly dependent on your case.

No matter which way you look at it, paying litigation fees can get costly very fast.

Mediation (Reduces Cost)

One of the best ways to keep the cost of your divorce lower is to utilize mediation. Mediation is much more affordable than litigation sessions, but most of the time, it's used by spouses who can stay civil enough with one another for the length of the meeting.

Mediation is more affordable than litigation because when you meet with your spouse, attorneys aren't needed. It is advisable that you both have attorneys for the rest of the divorce process and to look over any agreements you've made. They won't be present for mediation meetings.

Another reason mediation is more affordable than litigation is that, unlike litigation, you won't be having these sessions in a courtroom.

When you and your spouse agree to proceed with mediation, you'll need to hire someone to mediate the meeting. This person doesn't need to be a lawyer, and it shouldn't be either of yours. Plus, attorneys get costly. The mediator will sit in and listen to you, and your spouse speaks and only interfere if things start to get out of hand.

How much you'll be spending on a mediator varies. Some mediators charge a flat rate, while others will charge an hourly rate, similar to an attorney. Regardless of how they choose to charge you, mediation is approximately 90% more affordable than litigation.

Generally, both spouses split the cost of the mediator evenly. Just like litigation, there are exceptions to this. If your spouse makes more money than you, they may offer to cover a larger portion, or the entire cost. What it boils down to is how you and your spouse decide to cover the cost.

Online Divorce Service

Online divorce services are one of the more affordable ways to pursue a divorce from your spouse. There are dozens of online divorce services for you to look into. For the most part, you can find a service that costs only a few hundred dollars. In fact, there are some that cost as little as $99 but we don't recommend them because they are notorious for problems.

For only a few hundred dollars, you can get almost all the guidance you need for a reasonably straightforward divorce.

Even if you can use an online divorce service for your uncontested divorce, you'll still need to go to court and potentially pay some court and mediation fees.

Factors That Increase the Cost of Your Divorce

There are plenty of reasons that our divorce will cost a lot of money. Some of them you can control, while others you can't. Some of the major factors that can increase the cost of our divorce are:

Factors That Decrease the Cost of Your Divorce

There's no way around the fact that divorces aren't cheap. You're looking at at least a few thousand dollars. That being said, there are some factors that will help keep the costs of your divorce lower. Things that can help decrease the cost of your divorce are:

Key Takeaways
Divorces can be costly. While you're still looking at spending a few thousand dollars, there are ways to make your divorce more affordable. You'll be able to control some factors, like mediation versus litigation, and others you won't.
What We Recommend
3StepDivorce For Online Divorces In Illinois
4.8

If you want assistance with preparing your divorce forms appropriately and instructions on how to file them correctly, using an online divorce service is a great idea to save a lot of money and hassle.

We reviewed, rated, and ranked the best online divorce services available and our #1 choice is 3StepDivorce.


Visit 3StepDivorce Read Our Review
We earn a commission if you make a purchase, at no additional cost to you.

Custody Considerations in Illinois

Even in the most amicable divorces, ending a marriage can be difficult. While every decision you make surrounding your divorce is essential, what most people consider the most important is the custody of your child or children.

When you and your spouse are separating, coming up with a custody agreement that works for you both and is in the children's best interest is crucial to the judge finalizing the divorce.

In a perfect world, you and your spouse would be able to come up with a custody and visitation agreement that works for both of you. Unfortunately, this doesn't always happen quickly.

If you and your spouse cannot come to an agreement on custody, the courts will decide what type of custody each parent has, with the best interests of the children put first. The courts will take these factors into considerations when determining custody of the children:

As in many states, the courts encourage parents to come to an agreement on their own since they know their child better than anyone, in most cases. When they cannot, the courts will decide for them.

Physical Custody

Physical custody is which parent the child lives with the majority of the time. In a perfect world, both parents would have joint physical custody and come up with a schedule where they live with both parents almost equally.

We say almost because even if they want to split their time with both parents equally, there's always one parent that will have more time with the kids since there's an odd number of days in the week.

Unfortunately, joint physical custody isn't always possible. In these instances, one parent will have physical custody, and the other may have visitation or is not allowed to see their kids at all. These are harsh circumstances and will only happen in extreme cases since the courts want to keep the children with both parents if possible.

If you and your spouse are granted joint physical custody, you'll need to determine who has the kids and when.

This can be one that has them throughout the week and the other on weekends. Sometimes parents choose to trade-off, but what works for you and your children may be different from your neighbors.

Legal Custody

In Illinois, most courts prefer to award both parents legal custody. Legal custody is when one or both parents are responsible for making important decisions about the child's life. Important decisions include whether or not they're raised religiously, which religion, medical decisions, what school to go to, and other important life decisions.

Generally, the parent that gets physical custody of the child will also have legal custody. But, just because one parent has partial legal custody doesn't mean they have sole custody of the child. They may have shared custody or visitation but are still allowed to have a say in major decisions about their child.

Key Takeaways
Determining a custody arrangement that works for both spouses is one of the most challenging parts of the divorce process. The Illinois courts prefer to grant joint custody but will make their decision based on several factors, all centered around the child's best interests.

How the Courts Determine Child Support

When you and your spouse can't come to an agreement on the amount in child support and how often it'll be paid, the courts step in. Previously, the amount of child support to be paid to the other spouse was a flat rate percentage based on the number of children they're supporting.

That law has since been abolished, and now they calculate child support based on both parent's income, not just the supporting parent. How they determine the amount and frequency of payments are determined by doing a specific calculation. They calculate child support by:

When looking at the final numbers, the parent who has custody of the children most of the time will be considered the non-paying parent. They're considered a non-paying parent because the children living under their roof are assumed to contribute their share of the child support already.

The paying parent will then pay the non-paying parent their percentage of child support per pay period, or however often the courts have decided. In addition to each parent's income, the ages of the children and their individual needs are also assessed for child support payments.

Factors That Increase Child Support Payments

As a non-paying parent, you're probably wondering what factors will determine how much you'll receive in child support payments. There are several factors that will cause the amount of child support you receive to increase. These include:

When your spouse has a higher paying job than you, financially, they are able to contribute more in child support.

Younger children tend to need more financial support. Since they're constantly growing, they run out of clothes and shoes that fit more often, and baby supplies aren't cheap.

This may go without saying but the more children in the household, the more money that's needed to adequately support each one.

Factors That Decrease Child Support Payments

Just as there are factors that will increase the amount of child support you'll receive as a non-paying parent, there are factors that will decrease the amount. Here are the major reasons that your child support payments will decrease in value:

If your spouse has to take a pay cut or loses their job, their financial obligations will change until they can get back on their feet. They can't pay you money that they don't have.

For the most part, the paying parent will be paying child support until their child turns 18 years old. Once this happens, you'll have no child support payments, or they'll be reduced if you still have children under 18 in your home.

Key Takeaways
In Illinois, both parents are financially obligated to care for their children. The amount of child support that each parent will contribute is calculated based on individual income and how much they already contribute to the child.

Alimony Considerations in Illinois

Whether there are children in the house or not, alimony is something that needs to be considered when getting a divorce in Illinois. Alimony is sometimes called maintenance and is when one spouse pays the other for a specified period of time to assist in maintaining the lifestyle they had while married.

Temporary Alimony

Temporary alimony is what a judge may or may not grant during the course of the divorce. The alimony payments will only last until the judge finalizes the divorce. From there, if you're going to continue receiving alimony payments, the judge will issue a new alimony order.

Rehabilitative Alimony

If you're to receive alimony payments after the divorce is finalized, a judge can grant rehabilitative alimony. This can either be short-term or long-term. A judge will determine the amount based on calculations laid out in the law and then determine how long the payments will last.

How a Judge Calculates Alimony Payments

Judges will use a basic formula to calculate how much alimony you will receive if any. The formula is rather simple:

The one exception to this calculation is that the recipient of the alimony cannot receive more than 40% of the combined net income.

How Judges Determine How Long Alimony Payments Will Last

In Illinois, how long your alimony payments will last is directly related to how long you were married to your spouse. The longer you are married to your spouse, the longer your alimony payments will traditionally last. The length of alimony payments are a percentage of the length of the marriage:

Factors That Increase Alimony

Your alimony payments will be determined by income and how long your marriage lasted up until the day your divorce is finalized. If you're curious about how much your alimony payments could be or what makes them increase, these are the main reasons you'll see an increase in alimony payments:

For the most part, if you make less money than your spouse, this will increase the value of your alimony payments. Now, if you don't have a job at all, you will almost definitely be granted alimony if you request it.

This gives you time to find a new position or attend school to get a higher-paying job while being able to afford your lifestyle.

The longer you are married to your spouse, the longer your alimony payments will last. Hypothetically, if you and your friend were both to receive $800 per month in alimony, if you were married for longer than your friend, you'll end up with more alimony in the long run.

Factors That Decrease Alimony

There are factors that can decrease the amount of alimony you receive. Some of these factors will be determined at the beginning. While others may cause the judge to reevaluate your alimony down the road:

If your spouse is in an unfortunate situation where they either lose their job or take a position that has a significantly lower salary, you can expect your alimony payments to decrease.

In Illinois, when the spouse that is receiving alimony payments gets married to a new partner, alimony payments can legally stop. The paying spouse is no longer required to pay their ex-partner alimony. They can continue to provide alimony if they so choose or if it's outlined in the divorce agreement that payments will continue despite remarriage.

Lastly, alimony payments in Illinois will cease if your spouse passes away. Just like remarriage, if you and your spouse have a legal arrangement for you to receive alimony after their death, then payments can continue. If there's nothing in place, they will stop when the spouse passes.

Key Takeaways
Alimony can be helpful during and after a divorce to keep you on your feet and live the lifestyle you had when married. Whether an Illinois judge grants you temporary or rehabilitative alimony and for how long will be based on several factors.

Division of Assets

When you're divorcing your spouse, how you choose to divide all your shared assets can be challenging. If you and your spouse can come to an agreement on how to split everything from the house, cars, savings accounts, and more, it can save you a lot of trouble.

Being able to divide all your assets on your own can speed up the divorce process, and there's no need for a judge to make all the decisions other than to approve it.

If you and your spouse are like the thousands of other people who have gone or are going through a divorce and can't come to an agreement on how to divide everything, don't worry. A judge will factor in all your assets to ensure they're divided equitable, not equally.

When dividing up the assets, it's important to know that individual assets cannot be given to the other spouse in the divorce. Anything that's considered marital property can and will be divided between you and your spouse.

How a judge determines who gets what in the divorce is based on several factors. Each factor is considered fairly:

Real Estate

In Illinois, some real estate can be considered marital property, and others aren't. When the property is in both spouses' names, it's marital property and can be up for division in the divorce.

Even if only one spouse's name is on the property, if the house or other real estate was acquired during the marriage, it's marital property.

When you own a home from before you were married, this will stay in your name and can't be divided in the divorce.

401k, IRA, Investments

In Illinois, 401ks, IRAs, and investments are all considered marital property, even the portions that were acquired prior to the marriage. While all these assets are up for division as your divorce moves forward, most judges will try to keep personal assets with each spouse.

Businesses

If you and your spouse own a business together, this is up for division too. When a business is on the division line, if you both intend to continue running the business, the division will be equal or equitable based on who contributes the most to the business.

Key Takeaways
The division of assets in Illinois is equitable, not equal. The judge can divide all marital property how they deem fair if you and your spouse can't come to a decision on your own.

Common-Law Marriage Considerations in Illinois

Common-law marriage is when two people form a union and have been together for an extended period of time. To the community in which they live, they present themselves as a married couple. The biggest difference between a common-law married couple and a traditional married couple is that no ceremony took place to wed the couple.

When there's no ceremony to marry the couple, there's also no official marriage license that recognizes their marriage in the eyes of the law. Common law marriages are becoming less and less popular.

There are only eight states in the country that still allow common-law marriages to form. Illinois is not one of those eight states. The one exception to this is if you formed a common law marriage in another state that allows them.

If you came to Illinois from one of the eight states that allow common-law marriages to form, legal entities in Illinois have to acknowledge your common-law marriage.

When you want to break up or divorce your common-law spouse, there are good and bad things about it. You can avoid hefty price tags on lawyers, litigation, and other expenses since, technically, you can leave whenever you want since there's no marriage certificate.

On the other hand, if there are assets that you feel you're entitled to in the divorce, a common-law marriage may pose some challenges. If you want to separate from your common-law spouse, hiring an attorney can help you get what you feel you deserve in the separation.

Key Takeaways
Common law marriages cannot be formed in Illinois. While you can't form a common law marriage in this state, if you were common law married in a state that allows it, when moving to Illinois, they have to recognize it.

Alternatives to Divorce in Illinois

Coming to the decision to divorce your spouse and start a new chapter of your life is never an easy decision to make. Even if you know that the divorce is for the best, it doesn't always make it easier.

When you think divorce is the answer to your marriage but aren't ready to take the leap, there are options you may want to consider before heading to the courthouse to file the paperwork. Some alternatives are standard options, while there are a few unique options.

You don't have to try every alternative before filing for divorce unless you want to. Keep in mind that not every alternative will work well for everyone, and often, trying alternatives to divorce helps people decide what they really want.

Legal Separation

If you know anything about divorce, you've heard the term separation. You can separate from your spouse easily in most states. Most of the time, you don't need to file any additional paperwork, but in some cases, you do.

Illinois, and a handful of other states, have what's known as a legal separation. To legally separate from your partner, you'll need to fill out the appropriate documents and then file them with the courthouse.

How long you choose to separate from your partner is up to you. A legal separation can be beneficial for you and your spouse to work through your issues individually before trying to repair the marriage.

Legally separating from your spouse can help you feel like you're divorced until you finally are when you can't meet the residency requirement. If you've just moved to Illinois, you'll need to wait 90 days before filing for divorce. A trial separation can help pass the time until you can file or until you and your spouse realize you don't want a divorce just yet.

Annulment

Another alternative to divorcing your spouse is to file for an annulment. Most people call this dissolution of marriage an annulment, but the courts call an annulment in the state of Illinois a judgment of invalidity.

A judgment of invalidity, when finalized, states that your marriage was never officially a marriage. All records of the marriage will cease to exist.

Pursuing a judgment of invalidity isn't as easy or simple as it sounds. There are only a handful of reasons why a judge would consider granting you a judgment of invalidity. Some of the reasons you may get an annulment includes:

Regardless of the reason you're seeking an annulment in Illinois, you'll need to be able to prove it to the judge.

Work it Out Together

Most people try to work things out before jumping to divorce. You may think that you've tried everything possible to work things out with your spouse, but there are some helpful things you may not have tried.

There are instances when attempting to work it out won't work, but it's worth a fair shot. How you choose to try and work it out with your spouse may look different than another couple having issues.

Some people choose to try a trial separation. This time apart can help you both see things a little differently. It's the time when some people realize they can't live without their partner, or they realize that their life is less stressful and they feel more at peace without their spouse around.

Even if you go through with a legal separation, you'll still need to communicate with one another to work through whatever problems you're having.

Seek Counseling

Counseling is an excellent way to manage any troubles in a person’s life. When two spouses reach a point in their relationship where communication, honesty, fidelity, or any number of other issues cause strife, counseling could be the answer.

You can attend couples counseling where you both attend the same sessions with the therapist and communicate openly about your needs, your desires, and what you believe is the problem within the relationship. During couples counseling, the therapist listens to both sides.

Couples therapy is designed to help both partners reach an understanding and agreement about the problems in the relationship and how to address them, whether that resolution fixes the marriage or leads to divorce.

Another excellent option is to add individual counseling. Quite often, the problems that arise in a marriage are due to individual concerns and issues as well. Perhaps one partner spends too much money, gambles too much, loses interest in intimacy, or struggles with depression.

Addressing individual concerns alongside marital issues can be an important part of healing and resolving the difficulty in your marriage.

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Open Marriage

An unconventional method, though on the rise, is to suggest an open marriage to your spouse. Open marriages are very popular in many parts of the world and can be the saving grace your marriage needs.

Suggesting an open marriage to your spouse needs to be done with care and with boundaries in mind. You and your spouse will need to come up with boundaries that you're both comfortable with. These boundaries could be if they want to know about another person in their life, if they're allowed to sleep with someone else, or whatever makes you both feel comfortable.

Pursuing an open marriage with your spouse allows you both to look for whatever you feel is missing from your marriage elsewhere. These only work well when most of the marriage is great, but there's something small missing.

Parenting Marriage

A parenting marriage is another rather unconventional alternative for divorce. As you look into a parenting marriage, you'll notice that a lot of it is very similar to an open marriage.

When you enter a parenting marriage with your spouse, you're both living under the same roof so that you can both parent your children without the kids going back and forth to each other's home.

You and your spouse will be able to live their independent lives while ensuring that their children are taken care of. The biggest thing to note when entering a parenting marriage is that each spouse should have their own separate area within the home that they don't share with their spouse. This tends to be their bedroom.

As with an open marriage, a parenting marriage also requires boundaries. While the primary reason you're in this type of marriage is to parent your children, you're both not romantically involved anymore. Some people will want to start dating again, while others won't. It's important to set expectations that you'll have of one another before this alternative.

Key Takeaways
Divorce isn't always the answer. At least not right away. You can try counseling, an open marriage, separation, and more before officially calling it quits and starting a new chapter.
 
Lauren Cook-McKay is the Vice President of Marketing at DivorceAnswers.com. She holds a Master’s Degree in Marriage and Family Therapy (MFT) from the University of San Diego and applies her training in private practice to helping couples struggling in their marriage. She strongly believes there is hope in all marriages and strives to provide therapy to couples that will lead them back towards a loving marriage, or an amicable divorce that brings peace and closure. Connect with Lauren on LinkedIn here.