Family law in the United States: Illinois: Overview, Practical Law Country Q&A w-041-5951 Family law in the United States: Illinois: Overview by Meighan A. Harmon and Anita M. Ventrelli, Schiller DuCanto and Fleck LLP Country Q&A | Law stated as at 01-Nov-2023 | United States A Q&A guide to family law in Illinois. The Q&A gives a high level overview of key issues including jurisdiction and conflict of law; pre- and post-nuptial agreements; divorce, nullity, and judicial separation; children; surrogacy and adoption; cohabitation; family dispute resolution; civil partnership/same-sex marriage; and controversial areas and reform. This Q&A is part of the global guide to Family law. This contribution, in its original form, first appeared in Family Law (4th edition), General Editor James Stewart of Penningtons Manches LLP. Family Law was published in association with the International Academy of Family Lawyers. Jurisdiction and Conflict of Law Regulatory Framework Court System Jurisdiction Domicile, Nationality and Habitual Residence Conflict of Law Applicable Law Service of Proceedings Pre- and Post-Nuptial Agreements and Matrimonial Property Regimes Validity of Pre- and Post-Nuptial Agreements Pre-Marital Agreements Agreements Signed After Marriage Divorce, Nullity and Judicial Separation Recognition of Foreign Marriages/Divorces Divorce Religious Marriage and Divorce Finances/Division of Assets Finances/Spousal Maintenance (Alimony) Fixed Formula or Court Discretion Finances/Child Support Enforcement of Financial Orders © 2023 Thomson Reuters. All rights reserved. 1Family law in the United States: Illinois: Overview, Practical Law Country Q&A w-041-5951 Financial Relief after Foreign Divorce Proceedings Children Custody/Parental Responsibility International Abduction Leave to Remove/Applications to Take a Child Out of the Jurisdiction Surrogacy and Adoption Surrogacy Agreements Adoption Cohabitation Family Dispute Resolution Mediation, Collaborative Law and Arbitration Civil Partnership/Same-Sex Marriage Media Access and Transparency Succession Rights on Divorce/Dissolution Controversial Areas and Reform Contributor Profiles Anita Ventrelli, Senior Partner Meighan Harmon Jurisdiction and Conflict of Law Regulatory Framework 1. What are the primary sources of law in relation to marriage, marital breakdown and the welfare of children and give a brief overview of which courts will have jurisdiction to hear the dispute? Sources of Law In Illinois, family law matters are civil matters governed by the: • Illinois Code of Civil Procedure (735 ILCS 5/). • Illinois Supreme Court Rules. © 2023 Thomson Reuters. All rights reserved. 2Family law in the United States: Illinois: Overview, Practical Law Country Q&A w-041-5951 • Local circuit court rules. • Administrative orders of each circuit. State-wide statutory sources that govern family law matters include the: • Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 Illinois Compiled Statutes (ILCS) 5/). • Illinois Uniform Premarital Agreement Act (Premarital Agreement Act) (750 ILCS 10/). • Uniform Interstate Family Support Act (750 ILCS 22/). • Uniform Child-Custody Jurisdiction and Enforcement Act (Child Custody Act) (750 ILCS 36/). • Illinois Parentage Act of 2015 (Parentage Act) (750 ILCS 46/). • Adoption Act (750 ILCS 50/). • Gestational Surrogacy Act (Surrogacy Act) (750 ILCS 47/). • Illinois Religious Freedom Protection and Civil Union Act (750 ILCS 75/5). • Religious Freedom and Marriage Fairness Act (750 ILCS 80/5). Common-law case precedents are also an important source of law. Federal law. Federal law on family law issues also binds the Illinois courts, including, but not limited to the: • International Child Abduction Remedies Act (ICARA) (22 U.S.C. 9001). • Parental Kidnapping Prevention Act (PKPA) (28 U.S.C. 1738A 1980). • Decisions of the: • Supreme Court of the United States of America; • United States District Courts for the Northern, Central and Southern Districts of Illinois (on family law matters); and • United States Court of Appeals for the Seventh Circuit (on family law matters). Court System The Illinois courts consist of: • County circuit courts. • Courts of appeals. • The Illinois Supreme Court. © 2023 Thomson Reuters. All rights reserved. 3Family law in the United States: Illinois: Overview, Practical Law Country Q&A w-041-5951 Most circuit courts dedicate separate courtrooms to civil family law matters. Some dedicate separate courtrooms to domestic and family violence, which can later be consolidated with another family law action such a dissolution of marriage or a parentage matter. See also Question 2. Jurisdiction 2. What are the main requirements for local courts to have jurisdiction in relation to divorce, property and children proceedings? Divorce Illinois courts define subject matter jurisdiction as the power of a particular court to hear the type of case before it (Faris v. Faris, 35 Ill. 2d 305, 309 (1966)). A court has subject matter jurisdiction in a divorce, and can enter a decree even without personal jurisdiction over the opposing party, as long as the petitioner resided in Illinois (or was stationed in Illinois while a member of the armed services) for 90 days before initiating the action or for 90 days before the court makes findings (In re Marriage of Hoover, 314 Ill. App. 3d 707, 709-10 (4th Dist. 2000)); 750 ILCS 5/401(a) (Marriage Act); In re Marriage of Mates, 156 Ill. App. 3d 26, 29 (2d Dist. 1987); Hermann v. Hermann, 219 Ill. App. 3d 195, 197 (3d Dist. 1991)). Personal jurisdiction is required to impose certain remedies against an individual in relation to child custody or to property. Proper service on an Illinois resident vests in the court with personal jurisdiction over that individual (735 ILCS 5/2-201 (Marriage Act)). An Illinois court has personal jurisdiction over an out-of-state resident if the petitioning party satisfies the criteria of the Illinois long-arm statute (735 ILCS 5/2-209). For actions for dissolution of marriage, declarations of invalidity of marriage and legal separation, the state has long-arm jurisdiction over a non-resident where: • Their matrimonial domicile was in Illinois when the cause of action arose. • They committed any act giving rise to the cause of action in Illinois. Personal service must be made on the non-resident. For actions brought under the Illinois Parentage Act, the state courts have personal jurisdiction over a non-resident that: • Performs an act of sexual intercourse within Illinois during the possible period of conception. (Personal service of proceedings must be effected). • Performs an act of sexual intercourse within Illinois claimed to result in the conception of a child who lives in Illinois. © 2023 Thomson Reuters. All rights reserved. 4Family law in the United States: Illinois: Overview, Practical Law Country Q&A w-041-5951 • Fails to support a child, spouse or former spouse who continues to reside in Illinois where the responding party either formerly resided with them in Illinois or directed them to reside in Illinois. • Takes ownership, possession or control of any asset or thing of value present in Illinois when ownership, possession or control was acquired. Same-Sex Spouses and Civil Partners The Religious Freedom and Marriage Fairness Act ensures that same-sex and different-sex couples and their children receive equal treatment on civil marriage or on dissolution of marriage. Under the Religious Freedom and Protection in Civil Union Act, persons entering into civil unions have the same protections as those available to married persons. This means that an Illinois court will enter a judgment of dissolution of a civil union if the individuals meet the grounds for dissolution of marriage under the Marriage Act. Property The aspects of an Illinois divorce action disposing of property of any type require personal jurisdiction (In re Marriage of Passiales, 144 Ill. App. 3d 629, 637 (1st Dist. 1986)). Children The aspects of an Illinois divorce action adjudicating child custody matters (now known as "parenting allocation") require personal jurisdiction (In re Marriage of Passiales, 144 Ill. App. 3d 629, 637 (1st Dist. 1986)). The Child Custody Act governs jurisdiction over parenting allocation in Illinois and requires the Illinois courts to treat a foreign country as it would treat another US state of the for purposes of applying its jurisdiction provisions. Illinois courts can exercise jurisdiction for initial child custody determinations if the case meets the following criteria: • Illinois is the child's home state on the date the action commences, or was the child's home state at least six months before the action commenced, where the child is absent from Illinois but a parent or person acting as parent continues to live in Illinois. • A court of another state lacks jurisdiction as the home state, or a court of the home state declines to exercise jurisdiction on the ground that Illinois constitutes a more appropriate forum. • The child and the child's parents, or the child and at least one parent or person acting as a parent, has a significant connection with Illinois other than presence. • Substantial evidence is available in Illinois about the child's care, protection, education and personal relationships. • All courts that would otherwise have jurisdiction decline to exercise it on the ground that Illinois constitutes the more appropriate forum to determine custody. • No court of any other state would have jurisdiction under the criteria above. Except in cases where an Illinois court exercises emergency jurisdiction under the Parentage Act (750 ILCS 33/204), an Illinois court that makes a child custody determination retains continuing exclusive jurisdiction over the determination until: © 2023 Thomson Reuters. All rights reserved. 5Family law in the United States: Illinois: Overview, Practical Law Country Q&A w-041-5951 • A court of Illinois determines that: • neither the child, the child's parents nor any person acting as a parent have a significant connection with Illinois; and • the substantial evidence concerning the child's care, protection, education and personal relationships no longer remains in Illinois. • A court of Illinois, or a court of another state, determines that neither the child, the child's parents nor any person acting as a parent presently resides in Illinois. An Illinois court that makes a child custody determination but that does not have continuing exclusive jurisdiction can only modify that determination if Illinois has jurisdiction to make an initial determination. An Illinois court will continue to exercise exclusive jurisdiction and be considered the home state of a child who moves out of Illinois within a radius specified in the Marriage Act (750 ILCS 5/609.2(h)). An Illinois court can only modify a child custody determination made by a court of another state if an Illinois court has jurisdiction to make an initial determination (Child Custody Act (750 ILCS 36/203)). Illinois will exercise temporary emergency jurisdiction over a child present in Illinois where the child has been abandoned or emergency circumstances make it necessary to protect the child because the child, a sibling or a parent of the child is subjected to or threatened with mistreatment or abuse (Child Custody Act (750 ILCS 36/204)). Domicile, Nationality and Habitual Residence 3. How do the concepts of domicile, nationality and habitual residence apply in relation to divorce, financial arrangements, and children? An Illinois court has subject matter jurisdiction in a divorce, and can enter a decree regardless of whether it has personal jurisdiction over the opposing party, as long as the petitioner resided in Illinois (or was stationed in Illinois while a member of the armed services) for 90 days before initiating the action or for 90 days before the court makes findings (see Question 2). The term "residence" as used in the statute is not synonymous with "domicile" but denotes a permanent abode or place the individual considers home. The person's intent to make a place their permanent home is of greatest significance in determining residence (In re Marriage of McCaskey, 167 Ill. App. 3d 860, 863 (5th Dist. 1988), (citing Rosenshine v. Rosenshine, 60 Ill. App. 3d 514, 517 (1st Dist. 1978))). Conflict of Law © 2023 Thomson Reuters. All rights reserved. 6Family law in the United States: Illinois: Overview, Practical Law Country Q&A w-041-5951 4. What procedure applies for a party applying to stay proceedings in favour of a foreign jurisdiction? What factors do local courts take into account when determining forum issues? Procedure A matrimonial action must be brought in the Domestic Relations Division of the circuit court that both: • Is the court of the Illinois county in which either party to the action resides (the proper venue). • Has the power to determine property distribution, spousal support, child support and child custody within the action. (Marriage Act (750 ILCS 5/104).) See Question 2. A respondent can file a motion to dismiss an Illinois action on the basis that there exists another action between the same parties for the same cause pending elsewhere between the same parties and for the same cause as the Illinois action (Code of Civil Procedure (735 ILCS 5/2-619(a)(3)). Factors The party opposing the motion to dismiss can present affidavits or other proof denying the alleged facts, or establishing facts that eliminate the grounds for the defect. If the filings give rise to a material and genuine disputed question of fact, the court can either: • Decide the motion. • Deny the motion without prejudice to the right to raise the subject matter of the motion in response. Raising these matters by motion under the above provision of the Code of Civil Procedure does not preclude a party from raising them in an answer unless the court disposes of the motion on its merits. Anti-Suit Injunctions A party who establishes the court's jurisdiction over the opposing party can seek an injunction under the Code of Civil Procedure to order the opposing party not to take any action in the foreign proceedings until after Illinois determines the question of jurisdiction. The Code of Civil Procedure (735 ILCS 5/) governs the issuance of temporary restraining orders and preliminary injunctions. Applicable Law © 2023 Thomson Reuters. All rights reserved. 7Family law in the United States: Illinois: Overview, Practical Law Country Q&A w-041-5951 5. Are foreign nationals treated differently on divorce? Illinois courts apply Illinois law to actions for dissolution of marriage where there is no valid and enforceable agreement to use the law of a different jurisdiction. See Question 9. No provision of Illinois law specifies disparate treatment for foreign nationals. Some specific statutory provisions provide for forms of notice to foreign nationals (see Question 6). Service of Proceedings 6. What are the requirements for service of divorce, financial and children proceedings in your jurisdiction? Except as otherwise expressly provided, service on an individual defendant must be effected by either: • Leaving a copy of the summons with the defendant personally. • Leaving a copy at the defendant's usual place of abode with a member of the family or a person residing there over the age of 13 years, and informing that person of the contents of the summons, provided the officer or other person making service also sends a copy of the summons to the defendant at their usual place of abode in a prepaid sealed envelope. Service can be by either the county sheriff or by private/special process servers appointed by the court. (Code of Civil Procedure (735 ILCS 5/2-202, 735 ILCS 5/203).) The Code of Civil Procedure also makes other provisions for the service of individuals by special order (and by other means) where customary methods of service have not been effective. Alternate methods of service have included service on other related third parties and/or employees (In re Marriage of Schmitt, 321 Ill. App. 3d 360, 370 (2d Dist. 2001)). Service can also be accomplished outside of Illinois on any party that has submitted to the jurisdiction of the state (Code of Civil Procedure (735 ILCS 5/2-203 to 5/2-208)). Service outside of the state on any party that has not been determined to have submitted to the jurisdiction of the state limits the scope of the court's power to enter orders with service by publication only (Code of Civil Procedure (735 ILCS 5/2-208, ILCS 5/2-206)). Pre- and Post-Nuptial Agreements and Matrimonial Property Regimes © 2023 Thomson Reuters. All rights reserved. 8Family law in the United States: Illinois: Overview, Practical Law Country Q&A w-041-5951 Validity of Pre- and Post-Nuptial Agreements 7. To what extent are pre-nuptial and post-nuptial agreements binding? Pre-Marital Agreements The Premarital Agreement Act applies to any pre-marital agreement executed on or after 1 January 1990. Illinois pre-marital agreements must be written and signed by both parties and are enforceable without consideration. The parties to a pre-marital agreement can contract with respect to the following: • The rights and obligations of each party in any property belonging to either or both of them whenever and wherever required or located, including the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of or otherwise manage and control property. • The disposal of property on separation, marital dissolution, death, or the occurrence or non-occurrence of any other event. • Modifying or eliminating spousal support. • Making a will, trust or other arrangement to carry out the provisions of their agreement. • Ownership rights and disposition of the death benefit from a life insurance policy. • The choice of law governing the construction of the agreement. • Any other matter including personal rights and obligations that does not violate public policy or a statute imposing a criminal penalty. The rights of children to support cannot be adversely affected by a pre-marital agreement. Pre-marital agreements become effective on marriage. Following a marriage, the parties to a pre-marital agreement can only amend or revoke the agreement by a written agreement signed by both parties. Such amendments are enforceable without consideration (Premarital Agreement Act (750 ILCS 10/6)). An Illinois court will enforce a pre-marital agreement as long as the other party cannot prove either: • The party did not execute the agreement voluntarily. • The agreement was unconscionable at the time the parties executed the agreement in circumstances where a party did not receive a fair and reasonable disclosure of the property or financial obligations of the other party before the agreement was concluded and: • did not voluntarily and expressly waive the right to disclosure of the property of the financial obligations of the other party; © 2023 Thomson Reuters. All rights reserved. 9Family law in the United States: Illinois: Overview, Practical Law Country Q&A w-041-5951 • did not have or could not reasonably have had adequate knowledge of the property or financial obligations of the other party. An Illinois court will not enforce a provision of a pre-marital agreement that modifies or eliminates spousal support to the extent it will cause undue hardship in light of circumstances not reasonably foreseeable when the parties signed the agreement. Agreements Signed After Marriage The Marriage Act allows courts to enforce agreements between spouses to: • Designate property as non-marital (750 ILCS 5/503(a)(4)). • Resolve disputes relating to the dissolution of the parties' marriage in relation to property, maintenance, support, parental responsibility allocation for children and support of children, as well as agreements regarding pets (750 ILCS 5/502). A post-nuptial marital settlement agreement must be a valid common law agreement, and must therefore have adequate consideration for the promises made and received. Such marital agreements cannot: • Be unconscionable (750 ILCS 5/502). Illinois courts decide issues of unconscionability of marital agreements as a matter of law. In a decided case, the court: • found that duress could be sufficient to render an agreement unconscionable when proven by clear and convincing evidence; • took into consideration the wife's claims of fraudulent representation in determining unconscionability in relation to the economic circumstances resulting from the agreement. (In re Marriage of Richardson 237 Ill. App. 3d 1067, 1080 (1st Dist. 1992)). • Preclude or limit parental responsibility or the support of children (750 ILCS 5/502(f)). Such agreements can be enforced as contract terms, or incorporated into a judgment for dissolution of marriage to be enforceable by all the remedies available for the enforcement of a judgment, including contempt. 8. Do matrimonial regimes exist in your jurisdiction and is there a default matrimonial property regime? Default Regime © 2023 Thomson Reuters. All rights reserved. 10Family law in the United States: Illinois: Overview, Practical Law Country Q&A w-041-5951 Illinois uses an equitable distribution regime for property, which can be altered by a valid and enforceable pre-marital agreement or agreement to create non-marital property signed after marriage (Marriage Act) (750 ILCS 5/503(a)(4)). See Question 7. Marital property includes all property including debts and other obligations acquired by either spouse after the date of marriage. The courts presume all property acquired by either spouse during marriage to be marital property, including non-marital property transferred into a form of co-ownership between the spouses. A party can overcome the presumption of marital property by showing clear and convincing evidence that the property is non- marital property. Non-marital property includes: • Property acquired before the marriage, other than retirement plans that may have both marital and non-marital characteristics. • Property acquired by gift or inheritance, or acquired in exchange for such property. • Property acquired in exchange for property acquired before the marriage. • Property acquired by a spouse after a judgment for legal separation. • Property excluded by valid agreement of the parties. • Property obtained awarded to a spouse from the other spouse by a judgment (except where a spouse must sue the other spouse to secure insurance coverage or recover from a third party and the recovery directly relates to amounts advanced by the marital estate). • Property acquired by a spouse by the sole use of non-marital property as collateral for a loan where the party then uses the loan to acquire property during the marriage. To the extent the marital estate repays any portion of the loan, that repayment is considered to be a contribution from the marital estate to the non-marital estate that is subject to reimbursement. • The increase in value of non-marital property, whether it results from a contribution of marital property, non-marital property, a spouse's personal efforts or is otherwise subject to rights of reimbursement. • Income from property acquired by one of the above methods, as long as the income is not attributable to a spouse's personal effort. When one estate makes a contribution to another estate, the estate receiving the contribution must reimburse the contributing estate. The court will not allow reimbursement for a contribution that is not traceable by clear and convincing evidence, or that was a gift. A court may provide for reimbursement out of marital property or impose a lien against the non-marital property that received a contribution. Where marital and non-marital property is co-mingled so that the contributed property loses its identity, it becomes part of the estate that receives the property, and is subject to reimbursement. If the contributed property retains its identity, it remains property of the contributing estate. If marital and non-marital property co-mingle into newly acquired property that results in the loss of identity of the contributing estates, the co-mingled property is deemed to have become marital property, and is subject to reimbursement. © 2023 Thomson Reuters. All rights reserved. 11Family law in the United States: Illinois: Overview, Practical Law Country Q&A w-041-5951 If a spouse contributes personal effort to non-marital property, an Illinois court will treat the personal effort as a contribution from the marital estate. The court will award the marital estate reimbursement for significant efforts resulting in a substantial appreciation to the non-marital property unless the marital estate has received reasonable compensation for the personal efforts. The current property regime specifically states that property will not be deemed marital property solely because a party acquired the property in contemplation of marriage. This specifically overrides prior provisions that allowed a court to treat a home acquired in contemplation of marriage as marital property. The marital property regime includes specific provisions discussing retirement benefits, stock options. restricted stock or similar forms of benefits, as well as life insurance. Procedure Illinois courts assign each spouse's non-marital property to that spouse (Marriage Act) (750 ILCS 5/503(d)) and divide marital property without regard to marital misconduct in just proportions considering all relevant factors. See Question 15. Once a party files an action for dissolution of marriage, each spouse's common ownership in the marital property vests, and that interest does not encumber property so as to restrict its transfer, assignment or conveyance by the title holder unless the title holder is specifically enjoined from doing so. This allows the parties to a dissolution to continue to transact in property after the divorce filing (750 ILCS 5/503(e)). When determining the value of marital and non-marital property for the purposes of dividing property, the court has discretion to use the trial date or such other date as agreed on by the parties or ordered by the court at its discretion (750 ILCS 5/503(f)). As a part of apportioning property, an Illinois court can order one party to contribute to the other party's legal fees. Illinois courts base such awards on the criteria for the division of marital property and for awards of maintenance. Illinois courts employ a fair market value standard in determining the value of assets or property (750 ILCS 5/503(k)). The courts can seek the advice of financial experts or other professionals and Counsel have the right to examine these experts as they would any other witness (750 ILCS 5/503(l)). See Question 15. 9.How are foreign separation of property agreements and pre-nuptial and post-nuptial agreements treated by the courts in your jurisdiction? The courts will apply a valid contract's choice-of-law clause to disputes arising from the contract (see, for example, Kohler v. Leslie Hindman, Inc, 80 F.3d 1181, 1185 (7th Cir. 1996)). The Premarital Agreement Act allows for an agreement on choice of law. The question of choice of laws is governed by Illinois contact law. Under the Restatement (Second) of Conflict of Laws, §187(2) (1971), the law of the state chosen by the parties will govern a contract unless either: © 2023 Thomson Reuters. All rights reserved. 12Family law in the United States: Illinois: Overview, Practical Law Country Q&A w-041-5951 • The chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties' choice. • Application of the law of the chosen state would be contrary to a fundamental policy of the law of the state that: • would govern in the absence of an effective choice of law by the parties; and • has a materially greater interest in the determination of the particular issue than the chosen state. If the choice of law question is not at issue, courts must consider whether the agreement meets the requirements of contract law generally. In Illinois, a contract is "an agreement between competent parties, upon a consideration sufficient in law, to do or not to do a particular thing." Steinberg v. Chicago Medical School, 169 Ill.2d 320, 329 (1977) (citing People v. Dummer, 274 Ill. 637, 640 (1916)). An enforceable contract requires an offer, acceptance and consideration. (In re Marriage of Tabassum and Younis, 377 Ill. App. 3d 761, 770 (2d Dist. 2007)). See Question 7 for requirements of valid pre- and post-marital agreements. Divorce, Nullity and Judicial Separation Recognition of Foreign Marriages/Divorces 10. Are foreign marriages/divorces/civil partnerships recognised in your jurisdiction? Marriages Generally, if a marriage is valid where it was solemnised (either in another US state or in another country), it will be valid in Illinois. A marriage in any other state of country can be proved by the acknowledgement of the parties, cohabitation or other evidence. Foreign records of marriage can be accepted as evidence as an exception to the hearsay rule (Marriage Act (750 ILCS 5/409)). Divorces/Annulment Illinois has adopted the Uniform Enforcement of Foreign Judgments Act (735 ICLS 5/12-650 to 5/12-657). and generally recognises a foreign divorce judgment under principles of comity. Foreign judgments can be enrolled in Illinois and then enforced (and in some cases modified in certain regards) subject to the Uniform Interstate Family Support Act (UIFSA) (750 ILCS 22/101) and the Child Custody Act (UCCJEA) (750 ILCS 36/101 to 36/112), both of which have been adopted by Illinois (735 ILCS 5/12-652). Civil Partnerships © 2023 Thomson Reuters. All rights reserved. 13Family law in the United States: Illinois: Overview, Practical Law Country Q&A w-041-5951 A civil union, or a substantially similar legal relationship (other than common law marriage) legally entered into in another jurisdiction will be recognised in Illinois as a civil union. Similarly, a marriage, whether of same sex or different sexes, and providing that it is not a common law marriage, legally entered into in another jurisdiction will be recognised as a marriage in Illinois (750 ILCS 75/60). Divorce 11. What are the grounds for divorce? Divorce Since 2016, Illinois has followed the "no fault" approach to divorce where all that is needed for the court to enter a judgment of dissolution is a finding that the relationship between the spouses has broken down irretrievably and there are irreconcilable differences between the parties. If the parties have lived separately and apart for six months or more, the irretrievable breakdown is assumed (Marriage Act (750 ILCS 5/401)). Nullity A marriage can be declared invalid under Illinois law (formerly known as "annulment"), in the following circumstances: • A party lacked capacity to consent to the marriage at the time of the marriage due to mental impairment. • A party was induced into the marriage by: • force or duress; or • fraud as to the "essentials of the marriage". This does not include misrepresentation of fortune or failure to disclose a prior marriage (In re Marriage of Igene, 2015 Il. App. (1st) 140344, paragraphs 17, 19) but would include concealing a lack of capacity for sexual intercourse (In re Marriage of Naguit, 104 Ill. App. 32 709, 720 (5th Dist. 1982)). • A party lacked the physical capacity to consummate the marriage and the other party did not know of the incapacity at the time of the marriage. • A party was underage at the time of the marriage and did not have the consent of their parent or guardian. • The marriage is otherwise prohibited. (750 ILCS 5/301.) Judicial Separation © 2023 Thomson Reuters. All rights reserved. 14Family law in the United States: Illinois: Overview, Practical Law Country Q&A w-041-5951 Legal separation is available under Illinois Law but is rarely used, and the relief available is generally limited to reasonable support and maintenance (both temporary and longer term) for married people living apart. Property can only be valued or allocated by the agreement of the parties. The procedure for filing for legal separation is similar to that of filing for a dissolution of a marriage (750 ILCS 5/402). 12. What is the procedure and timeline for divorce? Divorce The procedure is as follows: • A divorce action is co
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