Should I Allege Fault in My Divorce Petition?
By: Gordon & Perlut, LLC
For quite some time, in order to get divorced, many states required the spouse petitioning for the divorce to allege fault-based grounds for filing. Until recently, although Illinois had a “no fault” option for filing for divorce, it still permitted the party seeking a divorce to allege grounds for a fault-based divorce.
However, since 2016, nobody who files for divorce in Illinois has the option of alleging grounds for divorce – and fault does not play a role in divorce cases in Chicago area courts or anywhere else in Illinois. Accordingly, you should not allege fault in your divorce petition. Instead, we will explain how Illinois came to be a no-fault divorce state and what you will need to allege when you file a petition for the dissolution of marriage under the Illinois Marriage and Dissolution of Marriage Act (IMDMA).
Illinois Public Act 099-0090
For many years, Illinois law allowed parties seeking a divorce to allege fault when they filed a petition for the dissolution of marriage. Anyone could use the no-fault “option,” by explaining that “irreconcilable differences” led to the divorce petition. Yet fault remained an option until January 1, 2016. These fault-based grounds for divorce were known as “heart balm actions,” and Illinois entirely eradicated them through Public Act 099-0090.
According to Public Act 099-0090, by 2016, a “majority of states [had] abolished heart balm actions.” In Illinois, those fault-based grounds for divorce still included fault-based grounds for divorce such as infidelity or mental cruelty. As Illinois lawmakers explained in eradicating those grounds for divorce, “society has since recognized that the amicable settlement of domestic relations disputes is beneficial,” and emphasized there was an interest in “mitigating the potential harm to the spouses and their children caused by the process of legal dissolution of marriage . . . and eliminating the consideration of marital misconduct in the adjudication of rights and duties incident to the legal dissolution of marriage, legal separation and declaration of invalidity of marriage.”
Further, lawmakers explained, “heart balm actions are inconsistent with these purposes.” The lawmakers who supported Public Act 099-0090 also made clear that “society has . . . realized that women and men should have equal rights under the law,” and that “heart balm actions are rooted in the now-discredited notion that men and women are unequal.”
Accordingly, fault-based grounds were abolished.
Irreconcilable Differences and Divorce in Illinois
Rather than alleging any fault-based grounds for divorce, a party filing for divorce only must clarify that “irreconcilable differences have caused the irretrievable breakdown of the marriage,” and then the court must determine that “efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family.”
You might be asking yourself: What type of evidence does this require? The answer is a very straightforward. If a married couple lives separate and apart for six (6) months or more, that separation results in an “irrebuttable presumption that the requirement of irreconcilable differences has been met.” In other words, if you live separate and apart from your spouse for at least six (6) months, you do not need to provide any additional evidence to prove “irreconcilable differences.” And living apart does not necessarily mean you live in separate households, but only that you do not live “like husband and wife”.
Contact a Divorce Attorney in Chicago
Do you need help filing for divorce? A Chicago divorce lawyer can help. Contact Gordon & Perlut, LLC today.