If you discover that your spouse is having an extramarital affair with another person, you may wish to file for divorce on grounds of adultery.
However, doing so might not lead to the results you are looking for. Although Illinois recognizes adultery as divorce grounds, you could most likely end your marriage in a quicker and more economical manner if you filed on the state’s no-fault grounds instead.
No-Fault Divorce vs. Fault-Based Divorce
No-fault divorce is a type of divorce you get when the marriage is over, but you do not want to explain why in court. In general, you can get a no-fault divorce by explaining in your divorce paperwork that the marriage is “irretrievably broken” (i.e. so damaged that it is beyond repair) or that you have “irreconcilable differences” (i.e. you and your spouse cannot resolve your arguments)—and that’s it.
Prior to no-fault divorce, the main legal approach to divorce was “fault-based.” In a fault-based divorce, the judge would review evidence of “marital misconduct” committed by a “guilty spouse” against an “innocent spouse.” Common grounds for a fault-based divorce include abuse, fraud, abandonment, chemical dependency, and of course, adultery. Adultery happens when a legally married spouse has a sexual relationship with an individual who isn’t the other spouse.
Illinois is considered neither a no-fault nor a fault-based state. Rather, the law has elements of both.
You can get divorced if you and your spouse have “irreconcilable differences” and the following statements are true:
- You and your spouse have attempted to resolve your issues, but you cannot, and you believe your marriage cannot be saved.
- You and your spouse have been separated for two years. Or, if you both agree to the divorce, you’ve been separated for six months.
In order to file for adultery grounds, you need to prove to the court that your spouse had an affair. If your spouse decides to contest the grounds, you’d have to provide evidence to support your allegations. Evidence includes credit card statements, cell phone bills, or findings of a private investigator.
How Adultery Affects Divorce
While adultery is a valid ground for divorce, judges in Illinois cannot consider adultery at all when it comes various divorce issues. As far as property division, for example, the Illinois legislative code states that courts need to divide property in a divorce “without regard to marital misconduct.” In other words, a judge cannot punish your spouse for having an extramarital affair by giving you a greater share of marital property.
The law against considering marital misconduct also extends to alimony, so a judge cannot punish your spouse for adultery by ordering him/her to pay alimony. If you and your spouse are disputing child custody, the fact that he/she committed adultery most likely won’t have an impact on a judge’s decision in this regard either.
If you are interested in filing for divorce in Illinois, contact Wakenight & Associates, P.C. and schedule a free consultation with our experienced divorce lawyer today.