Illinois contains a No-Fault Provision– What does that mean?

Scales of justiceThe Illinois Marriage and Dissolution of Marriage Act contains a no-fault provision. See In re Marriage of Semmler, 107 Ill. 2d 130, 89 Ill. Dec. 873, 481 N.E.2d 716 (1985); In re Marriage of Dowd, 214 Ill. App. 3d 156, 157 Ill. Dec. 894, 573 N.E.2d 312 (2d Dist. 1991). This means that fault, such as cheating, cruelty or other acts of misconduct are not considered when determining how the marital estate shall be divided or maintenance.

However, under the statute, there are certain grounds that need to be proven in order to get a divorce. It is a ground for the dissolution of a marriage that the spouses have lived separate and apart for a continuous period in excess of two years, that irreconcilable differences have caused the irretrievable breakdown of the marriage, and that the court determines that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family. See 750 ILCS 5/401(a)(2).

The no-fault provision does not make separation a culpable act. See In re Marriage of Semmler, 107 Ill. 2d 130, 89 Ill. Dec. 873, 481 N.E.2d 716 (1985).The key elements are the irretrievable breakdown of the marriage and the impracticability of reconciliation. Separation does not automatically lead to a dissolution which can still be prevented if the marriage has not irretrievably broken down. The state of “living separate and apart” can be realized without a physical distance between the parties. See In re Marriage of Dowd, 214 Ill. App. 3d 156, 157 Ill. Dec. 894, 573 N.E.2d 312 (2d Dist. 1991); In re Marriage of Kenik, 181 Ill. App. 3d 266, 129 Ill. Dec. 932, 536 N.E.2d 982 (1st Dist. 1989).Thus, for purposes of no-fault divorce under the statute, the two-year separation requirement can be satisfied even when a couple live in the same house, inasmuch as irreconcilable differences can be realized between the couple without living in separate residences.

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