Back To The Basics: Should I Pursue A “Fault” Divorce?

When filing for divorce, one of the preliminary and most basic issues to determine are the grounds that will be alleged for the divorce. In Illinois, a spouse may file for divorce based on either “fault” or “no-fault” grounds. As can be expected, the facts of each case will determine which grounds are appropriate to include in a petition for divorce.

“Fault” Grounds of Divorce

According to the relevant statute, Illinois has set the following “fault” grounds for divorce:

  • Impotence;
  • Bigamy (one spouse was legally married at the time the second marriage took place);
  • Adultery;
  • Abandonment for at least one year;
  • Alcohol abuse or drug addiction for at least two years;
  • Attempting to take the other spouse’s life;
  • Extreme and repeated physical or mental cruelty;
  • The other spouse was convicted of a felony; and
  • Infecting the other spouse with a sexually transmitted disease.

Obtaining a divorce based on fault grounds may be beneficial for the spouse who is not at fault in certain circumstances. If there are children involved, the court may consider the fault grounds in awarding child custody and visitation. If there are no children of the marriage, fault grounds are less relevant in the outcome of the divorce. While the fault grounds may be the basis of obtaining the divorce, the court will not consider fault in dividing property between spouses or in determining spousal support and maintenance payments.

“No-Fault” Grounds of Divorce

Illinois law also provides for “no-fault” grounds of divorce, where spouses who agree to a divorce do not have to prove material misconduct to obtain a divorce. Instead, “no-fault” grounds of divorce require proof of the following elements:

  • Separation for a period of at least two years;
  • Irreconcilable differences caused the marriage to be irretrievably broken;
  • The couple have attempted reconciliation and failed;
  • Any further attempts at reconciliation would be futile and against the best interests of the family.

In the event the spouses have not maintained separate residences for two years, they can prove the separation requirement by showing that although they resided in the same home, they have lived separate and apart with it, as roommates would. One exception to the two-year separation requirement is if the spouses have been separated for a period of six months and both agree to waive the two-year requirement in writing.

While it is helpful to have a basic understanding of the grounds for divorce, there are many other issues to consider before filing for divorce. An attorney experienced in divorce proceedings can provide further insight and advice tailored to a client’s specific case and circumstances. Contact an Illinois divorce lawyer today to discuss your divorce case, and other legal options that may potentially be available to you. We work with families throughout Illinois, including those in DuPage, Kendall, Cook, Kane, and other counties.