Marital Fault in Divorce

“My spouse cheated on me. If I file for a ’fault divorce,’ am I likely to get more in terms of support and property?”

The laws changed in Illinois once it became a no-fault divorce state. At one time, if the individual could prove that the other party was “at fault” for the divorce, the injured party may be awarded a lion’s share of the estate. That is no longer true.

Some of the available grounds for a “fault”divorce in Illinois are mental cruelty, physical cruelty, adultery, and desertion, to name a few. You will need to prove that the grounds exist and proof can sometimes be an issue. You have to be able to testify that this “fault” occurred through no fault of your own.

Some faults are harder to prove than others, and you cannot have forgiven the fault and thereafter receive a divorce on the basis of what was forgiven. Take the legal term condonation for instance. Condonation means that although your spouse did something to warrant a divorce, such as having an affair, if you forgive your spouse and continue to live together as husband and wife, you lose your ability to plead adultery based on that affair under condonation.

Most people are opting to choose a no fault divorce however, and plead “irreconcilable differences.” This means that no one is at fault, but the parties desire a divorce because irreconcilable differences have caused an irretrievable breakdown in their marriage and that past attempts at reconciliation have failed and any further attempts at reconciliation would not be in the best interest of the family. In order to plead irreconcilable differences, the parties must have been living separate and apart for a period of two years, or six months if the parties agree to waive the two year period. The separation period can still occur while the parties live in the same household as long as they are living lives separate and apart from each other. The court will require both of you to sign an affidavit stating that you have been living separate and apart for at least six months and are voluntarily waiving the two year period as required under the statute. A person may obtain a divorce based on irreconcilable differences after a two year separation without such waiver or agreement from their spouse.

Current law provides that property must be divided equitably and the court is not allowed to consider who was at fault when this division occurs. Your spouse cannot refuse to allow the divorce to move forward. You can either wait two years and file under irreconcilable differences, or you can file without a two year separation and plead one or more specific grounds.

The only benefit to finding “fault” in a divorce is typically when there are children involved. However, courts look at a parent’s fault and make a determination as to whether that conduct has had some sort of negative impact on the child. If your spouse has had an affair and you can prove adultery as a ground for divorce, it does not mean that you are automatically entitled to custody. In fact, if you make such an issue out of it, and broadcast the affair to the child, you could find yourself on the losing end of a custody dispute.