In Illinois, to file under the ground of irreconcilable differences, there is a two-year waiting period. Per Illinois law, the parties must have lived “separate and apart” for a period of at least two years. This two-year requirement can be waived if the parties have been separated for at least six months and agree to sign a two-year waiver form.
The other grounds in Illinois (fault grounds, as outlined in the “Grounds” section) may have specified time frames or requirements in which the behavior has continued. For example, in order to file under the ground of drug addiction or drunkenness, the addiction must be continuing for a period of at least two years.
Fault and No-Fault
Dissolution is the ending of a marriage ordered by a court. In Illinois, however, you could ask for legal separation and dissolution. When the court decrees (orders) a dissolution, it means that the dissolution is permanent, permits remarriage, and terminates property claims. When the court decrees a legal separation, it means that it is not permanent, does not permit remarriage, and does not terminate property claims (but the legal separation may settle these claims); it serves only to legalize the separation and provide for support. You are not required to get a legal separation before you can get a dissolution. Since dissolution in Illinois is statutory, the law is located in the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/).
Declaration of Invalidity of Marriage (formerly known as an “annulment”), establishes that your marital status never existed. The Court will declare that you were never married. Because the courts rarely grant an annulment, you should think twice about using this route if you want to end your marriage. The Court may look to, but is not limited to, the legitimacy of children and the preservation of the sanctity of marriage. Because of these considerations, a court will generally look to granting a dissolution instead of a declaration of invalidity of marriage.
There are three principal players involved in your marriage that will also be involved in your dissolution: you, your spouse, and the state. You cannot simply break up, saddle your charger, and ride off into the sunset. Among other legal considerations, you have to give the state an acceptable reason why you should be allowed to break up. The reason is known as the ground for your dissolution. Over the years each state has enacted legislation that governs acceptable grounds.
There are different grounds for a dissolution, separation, and declaration of invalidity of marriage (formerly known as annulment). In the case of a dissolution, there are eight (8) grounds for a court to grant a dissolution of marriage.
Dissolution of Marriage or Civil Union:
As outlined in the Illinois Marriage and Dissolution of Marriage Act, without cause or provocation by the petitioner, the respondent:
– was at the time of such marriage and continues to be natural impotent;
– had a wife or husband living at the time of the marriage;
– has committed adultery subsequent to the marriage;
– has willfully deserted or absented himself or herself from the petitioner for the space of one year including the time in which litigation may have pended between the spouses for dissolution or legal separation;
– has been guilty of habitual drunkenness for the space of two years; the respondent has been guilty of gross and confirmed habits caused by the excessive use of addictive drugs for the space of two years; or has attempted the life of the other by poison or other means showing malice, or has been guilty of extreme and repeated physical or mental cruelty;
– has been convicted of a felony or other infamous crime;
– has infected the other with a sexually transmitted disease; or
– irreconcilable differences causing the irretrievable breakdown of the marriage and the Court determines that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family. If the spouses have lived separate and apart for a continuous period of not less than six months prior to the entry of the judgment of dissolution (per testimony and affidavits of the spouses), the requirement for living separate and apart for two years may be waived upon written stipulation of both spouses filed with the Court.
Any one of these grounds, if proved, will result in the complete dissolution of the marriage (look to each ground in order to find out how to prove that ground). You can file for dissolution under more than one ground; however the ground of “irreconcilable differences” is the most common ground indicated in dissolution filings.