You can get a divorce in Illinois if you or your spouse are Illinois residents or are in the military and are stationed in Illinois.
You must live in Illinois for at least 90 days prior to the divorce being granted – you can file for divorce sooner. (Source: 750 ILCS 5/401(a))
Grounds for divorce
Illinois is a no-fault state. The only grounds for divorce is “irreconcilable differences” – you attest that you and your spouse have tried to work things out but you just can’t. (750 ILCS 5/401(a))
If you’ve already lived apart for six months or more, then the law considers that “an irrebuttable presumption” of irreconcilable differences.
Living apart for six months is not required, and there is no “waiting period” to get a divorce in Illinois.
The divorce process in Illinois
The process for getting a divorce in Illinois depends on:
If you know where your spouse is
If you have kids
If you and your spouse agree on all issues or not
How you want to work out any disagreements (mediation, collaborative divorce, or litigation)
Forms & documents
Illinois’ court system provides all the forms with how-to-fill-them-out guides on its website.
All forms should be filed electronically unless you don’t have regular access to a computer. The court lets you e-file via their system or you can pay a company that integrates with the Illinois court filing system. The court provides a list of approved e-filing companies here.
If you don’t have children, the court offers an online tool for filling out the petition for divorce. Note that you will need to fill out all the other forms yourself.
Another tool is available through Illinois Legal Aid Online, which will generate all necessary forms when you complete its detailed questionnaire. Illinois Legal Aid Online is a court-recognized non-profit that helps Illinois residents with all sorts of legal processes.
Additionally, there are a variety of online services that will guide you through the entire divorce process including filling out the forms.
File for divorce
First, you file a petition for divorce and notify your spouse. You must file for divorce in either your county or the county your spouse lives in. Illinois provides a list of which courts serve which counties here.
Then your spouse responds to the summons. If they don’t file an Appearance with the court, which is their acknowledgement of the legal proceeding, you will have to serve your spouse. You can do that personally or pay a fee to the Sheriff in your spouse’s county to serve them.
If you don’t know where your spouse lives, you will have to try to serve them and, if that fails, move to have the divorce go forward with your spouse, the respondent, “in default”. When the respondent has been served but doesn’t appear in court, the court will hear the petitioner’s side of the case and then make a judgement. (750 ILCS 5/405)
In other words, if you try but fail to serve your spouse the court can grant you a divorce anyway.
Negotiate the major issues with your spouse
Next, you decide on how you want to divorce. If you and your spouse agree on all issues and don’t have any complicated-to-divide property, then you can represent yourself and simply fill out and file all the required forms with the court.
This is true even if you have children, though children will require you to agree on a parenting plan and take a court-approved divorce education course.
You must out all the forms, including financial affidavits and, if necessary, include a parenting plan. Submit those documents to the judge so they can grant your divorce.
If you and your spouse don’t agree on all the issues, then you will have what’s known as a contested divorce. You have four options.
Try to work through disagreements with your spouse yourselves.
Work with a mediator – and courts will often require a couple to try mediation if they have kids and are unable to come to a complete agreement.
Each hire attorneys who will represent you in an effort to reach a settlement or go to trial.
Each hire attorneys and sign a Collaborative Divorce agreement, which is a binding agreement that structures a process for hashing out issues during divorce.
Going to trial is the most expensive and time-consuming option. Most divorces do not go to trial, including most divorces where each spouse hires an attorney. A trial is the last resort.
The major issues that you and your spouse need to sort out are:
Dividing the marital debts and property, including retirement benefits – i.e. who gets what?
Agreeing on spousal support, if applicable and desired
Child custody, including a parenting plan
Child support, though this is usually calculated according to guidelines described by Illinois state law and implemented by Illinois Dept. of Health and Family Services (HFS).
Any other issues, such as who keeps pets
Finalize your divorce
Then, you go to court in person to finalize your divorce at a brief hearing. If you need to have a trial, that will take more time.
Also known as alimony or spousal support, spousal maintenance is when one spouse makes regular payments to the other spouse after the divorce.
How much maintenance you pay or receive depends on:
Each person’s property and income
Each person’s needs, taking into account age, health, skills, liabilities and sources of income
The earning potential of each person
Any sacrifice in current or future earning ability of the person seeking maintenance as a result of forgoing a career to take care of kids or other marital responsibilities
Ditto for the person who would pay
How long it would take the person seeking support to gain the training or skills to become employable and self sufficient
Whether parent responsibilities would affect someone’s ability to get a job
The standard of living during the marriage
How long the marriage lasted
Any agreement between the couple
Anything else that the court deems relevant
How long you pay or receive spousal maintenance depends on how long the marriage lasted and will be decided by the court unless you come to a separate agreement with your spouse.
All decisions regarding child custody hinge on what’s in the child’s best interests.
You can look at child custody as consisting of two categories of rights and responsibilities.
Parents have the right to make major decisions for children about education, health – mental, dental and psychological, religion, and extracurricular activities. (750 ILCS 5/602.5)
Unless the parents can come to an agreement on their own, the court is required to allocate decision-making rights.
Some of the factors informing a court’s decision include:
What the child wants, taking into account their maturity and ability to make thoughtful, independent decisions
The child’s adjustment to their home, school and community
The mental and physical health of parents and child
The ability of parents to cooperate and their wishes
The needs of the child
How far apart the parents live, the child’s daily schedule, etc.
How willing each parent is to facilitate a close relationship between the child and the other parent
Any violence or abuse by one parent against the child and whether one parent is a sex offender
Day-to-day decision-making rights belong to the parent taking care of the child.
Like with decision rights, the court will decide parenting time unless the parents can reach an agreement on their own. The court will presume both parents are able to care for the child unless there’s a lot of evidence to the contrary. (750 ILCS 5/602.7)
The court will consider similar factors as it does for decision rights, with the addition of:
How much time each parent spent caring for the child in the two years prior to the divorce
The willingness of each parent to place the child’s needs ahead of their own
Whether either parent is in the military and, if so, the terms of their military family-care plan before deployment
If you are not granted rights to make significant decisions, you are still presumed to be “entitled to reasonable parenting time”. (750 ILCS 5/602.8)
A parenting plan describes how you and your spouse will care for your child after the divorce is granted.
If you can’t agree on a plan, the court may assign a mediator to help you. If you still can’t agree on a parenting plan, the court will decide on parenting time and other issues, taking into account separate parenting plans that you and your spouse submit to the court. (750 ILCS 5/602.10)
A parenting plan must cover:
The allocation of decision-making responsibilities
Where the child will live when, including on holidays
Each parent’s rights to access the child’s medical, dental, school, etc. records
A requirement that each parent notifies the other at least 60 days in advance of moving
A requirement that each parent notifies the other in event of emergencies, travel, or other significant child-related issues
Transportation arrangements between parents
Provisions for communicating with the child during the other parent’s parenting time
Provisions for how the parenting plan may be modified
The Illinois court provides a form that can be the starting point for a parenting plan.
More details about Illinois Child Custody
Read our guide on Illinois Child Custody for even more information about how the process works, how courts make decisions, and dealing with violations of the parenting plan after your divorce is finalized.
If you want your child to receive child support, you need to file a motion with the court. For the purposes of child support, a child needs to be under 18 years old or under 19 and still in high school. (750 ILCS 5/505(a))
The amount of child support is based on two charts set by Illinois HFS. First, the amount of child support is determined by how many children there are and the parents’ combined income.
Then, what each parent owes by default is a function of their net income. The parent who earns more after taxes will pay more of the child support obligation.
Illinois provides a worksheet for calculating child support and an interactive calculator.
There are additional expenses that parents must jointly cover, such as healthcare. If it’s financially reasonable for you, the court may require you to get health insurance for your child if they aren’t already insured. Or, the court may require you to apply for public health insurance.
If you have a job that pays on an unpredictable schedule, for example if you work for yourself, the court may be willing to work with you to set up a child support schedule that makes sense.
If you are unemployed or under-employed, the court may require you to try to get a job.
If you and your spouse can come to an agreement about how to divide your marital property, the court just needs to approve that agreement.
If you can’t agree on how to divide your marital property, the court will split it up “in just proportions” and “without regard to marital misconduct” (750 ILCS 5/503(d)). If your spouse cheated on you, that won’t affect the division of your marital property.
That raises two questions. First, what is “marital” and “non-marital” property?
Marital vs. non-marital property
Marital property is essentially all property you acquired while the marriage lasted, including while the divorce is happening. It doesn’t matter whose name the title for an asset is in. Your name could be on the title of a car, but as long as you acquired it after getting married it is joint marital property.
Non-marital property includes (750 ILCS 5/503(d)):
Gifts or inheritance, or property received in exchange
Property received in exchange for property from before the marriage
Property acquired by one spouse after a judgement of legal separation
Property acquired by a loan collateralized entirely by non-marital property
Increases in value of non-marital property
Income from non-marital property that isn’t due to effort of either spouse
Retirement benefits of all kinds or employee stock options are presumed to be marital property.
The second question is about what factors determine what “just proportions” means for a couple.
Courts will take into account:
Each spouse’s contribution (including as a homemaker)
The value of the property assigned to each spouse
How long the marriage was
The economic circumstances of each spouse when the divorce is happening, including whether it’s better to give the house or other residence to the spouse that has primary residence of the kids
Prenuptial or post-nuptial agreements
Age, health, and ability to earn a living
Whether property division is in lieu or in addition to maintenance
If certain assets are difficult to assign a value to, the court may assign an expert to determine how much those assets are worth (750 ILCS 5/503(l)).
Simplified Divorce Process
Illinois offers a faster, simpler divorce option.
Some couples are eligible for Illinois’ simplified divorce process (750 ILCS 5/452). You must meet the following requirements:
All eligibility requirements mentioned above
Each person is willing to waive the right to spousal support
There are no children from this relationship
You have been married eight years or less
You don’t own real estate or have retirement benefits (unless those benefits are held entirely separately and valued less than $10,000)
The total value of all your and your spouse’s property is less than $50,000
Your combined income is less than $60,000 and neither person earns more than $30,000
Each person discloses all financial assets, liabilities and tax returns to the other
You have a written agreement allocating ownership of any pets
Temporary Orders: help while your divorce is in progress
Temporary Orders are issued by the court while the divorce is in progress and expire when the divorce is granted (750 ILCS 5/501).
If you need child support, spousal support, or are worried about your spouse hurting you or your children you can file a petition for the court to grant temporary orders.
How do I find help?
The Illinois Bar Association and Chicago Bar Association provide online directories of lawyers.
You can find mediators online at Mediate.com.
Free legal aid
Illinois Legal Aid Online provides access to attorneys for Illinois residents who can’t afford an attorney on their own.