Illinois Divorce on the Grounds of Abandonment
By Elizabeth Rayne, J.D.
Although Illinois law no longer punishes spouses for abandonment, the state does allow divorce on the grounds of desertion. However, even when one spouse deserted the other, many couples still file for divorce on the grounds of irreconcilable differences, meaning that neither spouse is at fault. Apart from child custody, the grounds for divorce typically do not have much impact on the final divorce decree, which includes spousal maintenance, property division and child support.
Grounds for Divorce
Illinois courts will only grant a divorce if the couple has grounds for dissolving the marriage. Couples may pursue a "no-fault" divorce, meaning that neither spouse is responsible for causing the marriage to an end, but rather the couple has irreconcilable differences. A court will only grant a divorce based on irreconcilable differences if the couple has been separated for at least two years, or six months if the couple waives the waiting period requirement. Illinois also grants divorce based on a number of "fault" grounds, including desertion, cruelty and habitual drunkenness.
Illinois courts may grant a divorce on the grounds of desertion, but only if the circumstances match the legal definition. Illinois law recognizes desertion when one spouse has willfully separated himself from his spouse for at least one year. Although the spouse's departure must be willful, it may be provoked by the other spouse. Additionally, the year may include the time it takes for the spouses to negotiate a divorce settlement, or litigate the divorce agreement before the court.
Common Divorce Grounds
If you request a divorce based on the fault of the other spouse, you must provide evidence to prove that the other spouse is at blame. As a result, couples in Illinois more commonly seek a divorce based on no-fault grounds, or irreconcilable differences. Particularly if the couple agrees to sign a waiver for the two-year waiting period, the couple only has to wait six months to request a divorce instead of a year for desertion. As a result, many couples find it easier and less time consuming to file a divorce based on irreconcilable differences instead of desertion.
Impact on Divorce Decree
Generally, marital misconduct does not have an impact on the divorce decree, including orders surrounding spousal maintenance, property division and child support. In other words, seeking a divorce based on the grounds of irreconcilable differences likely would not result in lower spousal maintenance than if you filed on the grounds of desertion. However, if your spouse abandoned his children, or left your children unsupervised when he should have been taking care of them, this may demonstrate that he is an unfit parent. As a result, in some cases, evidence of desertion may influence a court's child custody determination.
Elizabeth Rayne earned her J.D. from Penn State University and has been practicing law since 2009, advising clients on issues ranging from employment law to nonprofit management. For two years, she served as a contributing editor for the "Vermont Environmental Monitor."