Illinois Family Law Basics

Divorce (dissolution of marriage)

Grounds

Illinois is a no-fault state. The only ground is "irreconcilable differences." No fault (adultery, cruelty) is required — neither spouse must prove wrongdoing.

Waiting period

If both spouses agree irreconcilable differences exist, no separation period is required. If contested, 6 months of separation creates an irrebuttable presumption.

Residency

One spouse must have resided in Illinois for 90 days before filing.

What a divorce resolves

• Division of marital property and debts
• Allocation of parental responsibilities for children
• Parenting time
• Child support
• Spousal maintenance (alimony)
• Health insurance for dependents
• Other matters (name change, etc.)

Allocation of parental responsibilities (formerly custody)

Illinois changed terminology in 2016 to move away from "custody" battles. Now:

Parental responsibilities

Divided into four categories of decision-making:

• Education
• Health (medical and psychological)
• Religion
• Extracurricular activities

Each category can be allocated to one parent, split between parents, or joint.

Parenting time

Time the child spends with each parent. Established by a specific schedule.

Best interest of the child

Illinois courts decide based on best interest of the child, considering:

• Each parent's wishes
• The child's wishes (weighted by maturity)
• The child's relationship with each parent, siblings, and others
• Each parent's ability to make decisions for the child
• The child's adjustment to home, school, community
• Physical and mental health of all parties
• Willingness of each parent to facilitate relationship with the other parent
• Domestic violence (a critical factor)
• Distance between parents' residences
• Other relevant factors

Child support

Illinois uses an "income shares" model. Child support calculated by:

1. Determine each parent's gross income
2. Determine each parent's net income (after taxes, withholding, certain deductions)
3. Combine both parents' net incomes
4. Use a statutory schedule to find the total support obligation for the combined income
5. Allocate between parents proportionally to each parent's share of combined income
6. Adjust for substantially equal parenting time

The Illinois Department of Healthcare and Family Services publishes the support calculator.

Who pays

Generally, the parent with less parenting time pays support to the parent with more. With substantially equal parenting time (40%+ with each), the calculation is different and often results in smaller transfer.

Duration

Until the child turns 18, or 19 if still in high school. Post-secondary educational support can be ordered in some circumstances.

Modification

Support orders can be modified when there's a substantial change in circumstances (20% income change, new child, change in parenting time, etc.).

Spousal maintenance (alimony)

Illinois statutory formula:

• Amount: 33% of payer's net income minus 25% of recipient's net income — capped so combined post-maintenance income of recipient doesn't exceed 40% of combined net incomes
• Duration: percentage of length of marriage, sliding scale (shorter marriages: shorter duration; 20+ years: potentially indefinite)

Court can deviate from the formula with specific findings. Maintenance can be reviewed and modified.

Parentage (establishing legal parents)

For married couples

A child born during marriage is presumed to be the child of both spouses. The presumption is rebuttable but difficult to overcome.

For unmarried couples

Parentage of the non-birthing parent is established through:

• Voluntary Acknowledgment of Parentage (VAP) — signed at the hospital or later, creates the legal relationship
• Administrative order through HFS
• Court order after petition and (sometimes) DNA testing

Without establishing parentage, the non-birthing parent has no legal rights or obligations.

For same-sex couples

Illinois Parentage Act treats same-sex couples equally. A child born during a same-sex marriage is presumed to be the child of both spouses. Pre-marriage children and assisted reproduction have specific provisions.

Domestic violence and family law

Domestic violence affects every aspect of family law. See the order of protection guide. Key interactions:

• An order of protection can include temporary allocation of parental responsibilities and parenting time
• Illinois law considers domestic violence an important factor in allocating parental responsibilities
• Supervised parenting time may be ordered for safety
• Victims of domestic violence have additional attorney fee-shifting protections
• Survivors should consult a family law attorney and a domestic violence advocate together

Immigration and family law

Family law matters intersect with immigration in significant ways:

• Marriage fraud concerns affect petitions but not legitimate marriages
• Divorce from a U.S.-citizen sponsor before conditions are removed can affect a green card
• VAWA self-petition is available for abused spouses of U.S. citizens or LPRs
• Custody of U.S.-citizen children can affect immigration posture of non-citizen parents
• Deportation of a parent creates complex family law emergencies

Non-citizens in family law matters should consult both a family law attorney and an immigration attorney. Consequences cascade.

Free help

• Chicago Volunteer Legal Services — Family Law — 312-332-1624
• Legal Aid Chicago — Family Law — 312-341-1070
• Illinois Legal Aid Online — Family — illinoislegalaid.org
• Domestic Violence Legal Clinic
• Pro Bono Network — coordinates pro bono family law attorneys
• Cook County Circuit Court Self-Help Desk
• Illinois Free Legal Answers