Tuesday, March 3, 2009

Grounds for Divorce in Illinois

By H. Joseph Gitlin

 

Q: Don’t the grounds for divorce in the divorce petition tell the reason for the divorce?
A: No, not by a long shot.  Illinois has ten fault finding grounds for divorce and one no fault basis (irreconcilable differences).  Grounds are the legal hook on which the divorce hat is hung, but the grounds stated in the petition for divorce seldom have anything to do with the real reason for the dissolution of the marriage.  You can’t have a divorce by stating nice things about your spouse.  You can only have a divorce by stating grounds for divorce and these grounds, except for irreconcilable differences, are fault finding.

 

Q: Do the legal grounds for divorce really matter?
A: Not usually.  As a matter of law if the person bringing the divorce cannot establish the grounds for divorce the judge cannot grant a divorce, however, the alternative is in living apart for two years and then no fault (irreconcilable differences) kicks in and the divorce is virtually automatic.  In fact the “living separate and apart” does not require separate residences, but may be accomplished by staying in separate bedrooms and no sexual relations.

 

Q: Why would a person resist a divorce when the other side is intent on it?
A: Either for leverage, in order to obtain a better settlement, or because of a desire to reconcile.  When my clients want to reconcile the marriage I tell them lawyers (and judges) can do virtually nothing about reconciling a marriage, except be supportive of the spouse wanting to reconcile the marriage and not to stand in the way of a reconciliation.  One concrete thing a lawyer can do is to buy time.  Simply not agreeing to the divorce should buy seven or eight months, and a case not coming to conclusion for about two years is not unheard of.

 

Q: What is the down side to holding up a case on account of grounds for divorce?
A: There is hostility in virtually every divorce case.  The question is only of the level of hostility.  By resisting the grounds for divorce you will raise the level of hostility and make the case much more difficult to settle fairly.

 

 

Jon D. McLaughlin, Esq.

Cannell & Maulson, P.C.

211 West Jefferson Street

Bloomington, Illinois 61701

(309) 828-5600

Jon@CannellandMaulson.com