Does Adultery Affect Divorce in Illinois?

Divorcing your spouse in Illinois can be a complex process. Not only will you dissolve the legal relationship that you have with your spouse, but you must also divide your possessions, you debts and, more importantly, you must determine who will be responsible for taking care of your children. 

Your divorce proceedings may be further complicated if one of the spouses had or is having an affair.  Illinois is a “no-fault” state, which means that the state recognizes “irreconcilable differences” as the basis for divorce. 

In the past, prior to Illinois’ adoption of no-fault divorce, adultery was one of the grounds for divorce, and proving the other party committed adultery might have been a bar to claiming alimony.

However, these rules no longer apply. Even so, your spouse’s infidelity may influence some of the aspects of your divorce proceedings.

Let’s take a closer look at how adultery affects divorce in Illinois.

Getting a Divorce in Illinois

In the State of Illinois, you may file for a divorce if you meet certain requirements, including:

• You or your spouse have lived in Illinois for a minimum of 90 days prior to initiating divorce proceedings; and
• You and your spouse have “irreconcilable differences”

If you and your spouse have been separated for at least six months prior to filing for divorce, the court will take that as proof that there are irreconcilable differences. Otherwise, you must testify that your marital problems cannot be worked out, which is a relatively simple matter when working with an experienced divorce attorney in McHenry Illinois.

If you and your spouse agree on issues like alimony, asset division and parenting time (child custody), then you may proceed with an uncontested divorce.

However, if there are issues you just cannot agree on, you will have to go through the more involved process of a contested divorce. You and your spouse may have to file additional documents detailing your specific situation and how you wish the court to decide various issues. On matters relating to the children, the judge may also order both parties to attend mediation.

If you and your spouse cannot come to agreement on all issues, then your case will go to trial on the contested matters. During the trial, you and your spouse will may testify, present witnesses and evidence and make arguments in support of what you are requesting.  The judge will make a final determination on unresolved issues.

How Adultery Influences a Divorce Judgment

While an extramarital affair may not technically affect the outcome of your divorce, it can influence some of the proceedings, including how your assets are distributed, as well as how child custody issues are decided.

Assets

The most likely area that adultery may affect during an Illinois divorce is the distribution of assets.

Illinois courts may consider many issues when allocating marital assets, including:

• Spousal contribution
• Income of each party
• Length of marriage
• Prenuptial agreements
• Child custody
• Future income

One factor that Illinois courts may consider is “dissipation of assets.” 

Dissipation is a legal term that applies when a person wrongfully disposes of a marital asset or assets him after the marriage has broken down. Making a large cash gift or expenditure of marital resources on an extramarital affair may qualify for a dissipation of assets and affect how assets are distributed in the divorce judgment.  Also using marital property for purposes unrelated to the marriage may be a dissipation.

Child Custody and Alimony

If there are children from the marriage, infidelity may tangentially affect the child custody determination and parenting time allotted to each party.

In general, an extramarital affair may affect how child custody is apportioned, particularly if the extramarital partner poses a credible risk to the children.

Illinois courts may also consider prenuptial agreements that have infidelity clauses. Many prenuptial agreements that financially penalize adulterous spouses are upheld, but agreements with unconscionable provisions may be invalidated.

Contact Diamond Legal to Help Guide You Through this Process

Protect your interests with highly-skilled legal counsel. Diamond Divorce Law, has a team of experienced divorce attorneys that are ready to guide you through your divorce. Contact us to learn more about our services.

DISCLAIMER: Any information contained herein is solely for informational purposes and is only applicable in the state of Illinois.  While it is important that you educate yourself, nothing herein should be construed as legal advice or create an attorney-client relationship. For specific questions, we urge you to contact a local attorney for advice pertaining to your specific legal needs.