John Roska: Divorce law changing in Illinois

John Roska: Divorce law changing in Illinois

Q: I heard that the divorce law will change so there will only be one ground for divorce. Is that true?

A: Yes. Starting Jan. 1, 2016, the only grounds for divorce in Illinois will be irreconcilable difference. No more mental cruelty, or any of the other old grounds.

The change comes from a major overhaul of the Illinois divorce law — officially known as the Illinois Marriage and Dissolution of Marriage Act. The last overhaul had been in 1977, so many thought another was overdue.

The new revisions try to soften some of divorce court's hard edges. Proving fault to get divorced often stirred up trouble, so all the current grounds for divorce are being abolished, and replaced by irreconcilable differences. Also abolished are the words "custody" and "visitation." Now a judge will make an "allocation of parental responsibilities."

Our current law says that if you want to get divorced, "proper and sufficient proof of the existence of grounds" is required. It lists 10 fault-based grounds, and irreconcilable differences.

In practice, most Illinois divorces have been based on irreconcilable differences, or mental cruelty. The more exotic grounds like bigamy, adultery or "habitual drunkenness" are almost never used.

After Jan. 1, "grounds" don't exist any more. A judge will just have to determine two things: that "irreconcilable differences have caused the irretrievable breakdown of the marriage," and that either past attempts to reconcile have failed or that future attempts "would be impracticable and not in the best interests of the family."

The law specifies that if "the parties live separate and apart for a continuous period of not less than six months immediately preceding the entry of the judgment dissolving the marriage," then irreconcilable differences have been proven. Then it's an "irrebuttable presumption."

That will be different from the current definition of irreconcilable differences. Now, it requires a two-year separation — or six months and a written waiver from both spouses of a two-year separation. People who can't prove irreconcilable differences either way under the current version of the law usually use mental cruelty as grounds.

The new law makes irreconcilable differences easier by reducing everything to six months, and by not requiring anything in writing from the other spouse.

Being separated for six months won't be the only way to prove irreconcilable differences under the new law. Proving that something else constitutes irreconcilable differences should be possible. But a six-month separation will be easiest, so that's what most people will probably do.

In addition to making Illinois a pure no-fault divorce state, and replacing the words "custody" and "visitation" with "allocation of parental responsibilities," the new divorce law requires parents of kids to file a "proposed parenting plan," and gives more guidance on relocating with kids, based on specific distances.

It also requires new standardized forms, which may streamline procedures. And it makes a "joint simplified divorce" more available, by raising the income limits.

Time will tell how all these changes work, and whether they're real or cosmetic.

John Roska is a lawyer with Land of Lincoln Legal Assistance Foundation. You can send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.

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