In 2016, Illinois became a no-fault divorce state, joining in a national trend away from fault-based divorces and focusing instead on the best interests of the family. As of 2016, all divorces in Illinois have only one available ground for divorce:
that irreconcilable differences have caused the irretrievable breakdown of the marriage, that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family. 750 ILCS 5/401.
No-Fault Divorce and the Meaning of Irreconcilable Differences
There are a few cases where the Courts have been asked to identify the meaning behind “irreconcilable differences.” In cases where the parties agree they have lived “separate and apart” for 6 months, there is an irrebuttable presumption that irreconcilable differences have arisen. Before 2016, and the change in the law, the courts defined “irreconcilable differences” as “the existence of marital problems which have so impaired the marriage relationship that the legitimate objects of matrimony have been destroyed.” In Re Marriage of Bates, 141 Ill. App. 3d 566, 570 (2d Dist. 1986).
Proof of Irreconcilable Differences
To prove that the grounds of irreconcilable differences have been met, the parties will state that the parties have lived “separate and apart” for a period of 6 months prior to the filing for divorce. This does not mean you need to move out, and live in separate households for 6 months before filing for divorce. Really what this term means, in legalese, is that the parties to a divorce have not “cohabitated” for the requisite period of time – even if they live in the same house.
In In Re Marriage of Dowd, the spouses were using separate bedrooms, with no meaningful communication, but they were sharing fundamental financial obligations. The Court found that they were using separate bedrooms and were not having meaningful communication sufficient to find they lived “separate and apart.” In re Marriage of Dowd, 214 Ill. App. 3d 156 (2d Dist. 1991). In In re Marriage of Tomlins and Glenn, the wife’s testimony that the parties had not had sex for two and a half years, and slept in separate beds before the husband moved out permanently was sufficient to establish that the parties lived separate and apart within the statutory requirement.
No-Fault Divorce Doesn’t Care About Bad Behavior
The fact that the only grounds available for divorce are “irreconcilable differences,” also means that you no longer have to plead or allege abuse, infidelity, abandonment, or substance abuse in order to be granted a divorce. The flip side of that is that if your spouse has been abusing you, or committing adultery, or abandoned you, or has an uncontrolled substance abuse problem (and that’s why you want the divorce) – the Court will not care.
Unless something in those activities or behaviors affects their ability and fitness to parent your children, or unless they are spending your shared assets in order to pursue those activities, the Court is not likely to want to hear about their bad behaviors. However, if it is one of those issues – like an alcohol or marijuana problem affecting their ability to share parenting responsibilities, the Court does need to hear about the unfit parent so that they can enter an Order that protects them.
If your spouse is doing those types of behaviors, like for example, spending a ton of money or wasting marital assets on an unaddressed gambling habit, a good divorce attorney will be able to go through your financial information and ask that you be reimbursed for your share of the money that your spouse wrongfully took from the marital estate to support the habit after the disintegration of the marriage began. Then, if the Court agrees that those funds were dissipated, you can be allocated additional sums of money for whatever your share of the funds were.