Matrimonial Law

To sever a matrimonial relationship in Illinois you must either obtain a dissolution of marriage (a divorce) or a declaration of invalidity (an annulment).

Annulment

An annulment is an action to obtain a judicial ruling that a valid marriage never occurred in the first place.

Valid grounds for an annulment are:

• Either party lacked capacity to consent to the marriage at the time the marriage was entered into. Lack of capacity includes mental incapacity, incapacity due to alcohol, drugs, or other incapacitating substances, or the inducement to enter into the marriage by force, duress, or fraud involving the essentials of marriage.

• A party lacks the physical capacity to consummate the marriage by sexual intercourse and at the time of the marriage the other party did not know of the incapacity.

• A party was 16 or 17 years of age when the they married and did not have the consent of a parent, guardian, or judge.

• The marriage is prohibited by law.

Divorce

A divorce is an action that dissolves a valid marriage. Valid grounds for a divorce are:

• Impotence

• Adultery

• Bigamy

• Desertion

• Drunkenness

• Drug addiction

• Attempted murder of spouse

• Physical cruelty

• Mental cruelty

• Felony conviction

• Infecting spouse with a sexually transmitted disease

• Irreconcilable differences (no-fault divorce).

The most common ground used in a divorce seems to be “irreconcilable differences.” 

The statute requires that:

• the parties live separate and apart for a continuous period of more than two years, and

• that irreconcilable differences have caused an irretrievable breakdown of the marriage, and

• that efforts at reconciliation have failed, or

• that future attempts at reconciliation would be impracticable and not in the best interests of the family.

The two-year separation requirement may be waived by both spouses, if both spouses have lived separate and apart for at least six months. Courts have ruled that spouses may live “separate and apart” even though they reside under the same roof, but using separate bedrooms.

Temporary  or Permanent Maintenance

You may be entitled to temporary or permanent maintenance. A court will consider the following factors in determining whether an award of temporary or permanent maintenance is warranted:

1. The income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance;

2. The needs of each party;

3. The present and future earning capacity of each party;

4. Any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities, due to the marriage;

5. The time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment or is a custodian of a child making it appropriate that a custodian not seek employment;

6. The standard of living established during the marriage;

7. The duration of the marriage;

8. The age and the physical and emotional condition of both parties;

9. The tax consequences of the property division upon the respective economic circumstances of the parties;

10. Contributions and services by the party seeking maintenance to the education, training, career, or career potential, or license of the other spouse;

11. Any valid agreement of the parties; and

12. Any other factor that the court expressly finds to be just and equitable.

No one factor is controlling in determining whether maintenance is awarded and nothing in the statute requires the court to give equal weight to each factor. The court is only required to consider the relevant factors and to strike a reasonable balance.

Interim Fees

In general, each party is obligated to pay his or her own attorney fees. However, if one spouse does not have the funds to pay his or her own fees, but the other spouse does, the spouse in the weaker financial position may ask the court for an order directing the other spouse to pay for some or all of his or her fees. The idea is to achieve substantial parity between the parties so that each may pay his or her own fees.