State laws regulate marriage. Similarly, divorce is also a state law issue. Each state, including Illinois, has its own set of laws governing divorce. However, there are some common issues among all the states.
Where to File
Once spouses have decided to end their marriage, the first legal question is where to file for divorce. Usually, a spouse will file in the state county where the couple lives. If the couple has been separated for a while and live in separate counties, then states usually allow a spouse to file in the county where the other spouse lives or in the county where the spouses lived together prior to separation. If the non-filing spouse has moved out of state, then many states will allow filing for divorce in the county where the filing spouse lives. Most states also have residency requirements that involve living in the state for a certain period of time before being able to file.
Most states require that the couple live separately for a certain period of time before filing a final petition. The exact time period varies from state to state. In general, living separately means that each spouse has his or her own residence for living and sleeping. If the spouses get back together after having separated, their reunion could stop the clock on the separation period. This might mean that if they separate again, none of the time they spent apart earlier counts to fill the separation period requirement.
In addition to the length of separation period required, state laws will also vary as to how sensitive they are with regards to stopping the separation period clock. For example, if spouses spend one night together with no intent of becoming a couple again, whether that night restarts the separation period will depend on the specific state’s laws.
Filing the Petition
Once a spouse knows where to file the petition and the separation period has passed, he or she can file the actual papers. Generally, the petition is formally called a “Complaint for Dissolution of Marriage.” The petition generally requires specifying the grounds for wanting to end the marriage. States have no-fault or fault-based laws, or both, to explain the grounds for divorce.
In a no-fault divorce, the petition typically has generic language that can be used to explain the reason for ending the marriage, such as “irreconcilable differences.” A fault-based divorce petition requires a more specific reason, such as cruelty or desertion. The exact fault options available depend on the state.
When the petition is filed, the non-filing spouse gets formal notice of the divorce case and court proceedings can begin.
Finalizing the Divorce
Before a court can legally end the marriage, there must be an agreement explaining how to divide the marital property. Courts prefer that spouses negotiate an agreement through their attorneys or through mediation. However, if those options aren’t possible, then the couple must have a divorce trial and the court will decide who gets what. Again, the state laws governing these issues vary. The trial will also address issues of ongoing spousal support, and determine any child custody and support issues if there are children.