The “waiting period” and other jurisdictional issues can be very confusing when a couple is contemplating filing for a divorce. When it comes to a waiting period for filing for divorce in Chicago, there are generally two separate questions or issues that arise in these discussions.
Waiting Period Question 1:
Do I have to wait to file for a divorce in Illinois after I move there from another state?
That depends. The relevant statute requires that a party reside in the state of Illinois for ninety (90) days prior to filing for a divorce. So, you technically should reside in the state of Illinois for at least ninety (90) days prior to filing for a divorce, and you should maintain that residence for 90 days prior to the divorce being entered. The Judge’s prove-up form in Cook County even has a check box to check off on it asking whether the person resided in Illinois for 90 days prior to filing and if they have resided in Illinois for 90 days as of the date of entry of the divorce, seemingly meaning either or would be acceptable (however, technically, both are required.) In a situation where someone is concerned about a competing jurisdiction (i.e. one spouse wants to file in Texas and one spouse wants to file in Illinois) it is plausible that the argument that the person has not resided in Illinois for 90 days prior to filing likely would help them get the Illinois action dismissed. This is definitely something to be mindful of when considering filing.
Waiting Period Question 2:
Is there a required “separation period” (and do I need a legal separation) prior to a divorce being granted?
Illinois used to have a mandatory two (2) year separation period prior to a divorce being entered by no fault, unless you alleged grounds for divorce, such as mental cruelty, in which case the waiting or separation period could be six months instead. This has long been abolished. Now, parties have to allege that they have been separated for six (6) months prior to the divorce being finalized and a six (6) month separation period presumes irreconcilable differences have occurred (it creates a rebuttable presumption). A formal legal separation is not required. Living in separate residences for six (6) months prior to filing is not even required. What is required, however, is a breakdown in the marriage occurring six (6) months prior to the divorce being entered. Attempts at reconciliation in Illinois will not count against the six (6) month waiting period, so as not to encourage people to keep from reconciling.
Speak with a Trusted Divorce Attorney in Chicago Before Filing for Divorce in Illinois
These two waiting period issues definitely can apply to different cases with different facts in different ways and it is always worthwhile to talk to a divorce attorney regarding the facts in your specific case before making a decision regarding where to file for divorce. Choosing a jurisdiction where there is no personal jurisdiction over your spouse, for example, has certain implications regarding spousal support. Military retirement division may also be dependent upon where an action is filed and filing in certain places can cause issues. It is important to consult an experienced divorce attorney to discuss jurisdictional issues prior to filing so that you can make an informed decision on the same.