What is the waiting period for divorce in Illinois? As a Chicago divorce lawyer, I get this question a lot. Not surprisingly, many times people want to get divorced in Illinois as fast as possible. As a state in other articles, uncontested divorce is it good way to make that happen. But even then, you would still have to deal with the waiting period issue. I hope to explain the two types of waiting periods in this article.
Alert: This is an old article based on the old law. See my new article about divorce waiting periods here.
Residency waiting period
Perhaps the most basic requirements for getting divorced in Illinois is that one of the parties must be a resident of Illinois for at least 90 days before filing for divorce.
After people find that out, they often asked me what it means to be a resident. The basic explanation is that it means that you have a residence in Illinois and intend to reside in Illinois permanently.
After finding that out, people tend to ask how they prove they are residents. In an uncontested divorce, its very simple. You state you are a resident on a couple pieces of paper, then you repeat that statement in court. I have never witnessed any further inquiry into the matter in an uncontested divorce. However, it should be noted that in a contested divorce involving litigation, the other party might try to claim you are not a resident of Illinois if that other party won the case to be heard someplace else where that other party live.
Also, being a resident of Illinois does not mean that you have to actually be physically in Illinois. For example, if you temporarily work overseas, you may still be in Illinois resident. Further, if you are in the military and based outside of Illinois, but you were previously a resident of Illinois, you may still be in Illinois resident.
An Illinois family law attorney can probably give you the best insight into whether or not you qualify as a resident of Illinois.
Divorce finalization waiting period
I call the other waiting period the “Divorce Finalization Waiting Period” because the end of the period is when the divorce can be finalized in court. But when does the waiting period begin?
It begins when the spouses begin living “separate and apart.” However, in the legal context, living separate and apart does not mean that spouses must be living in separate residences. The spouses can live in the same residence, but simply be living their as roommates. Further, the Divorce Finalization Waiting Period does not start over simply because the parties attempt to “reconcile” briefly and the reconciliation does not work out.
The sum of the beginning and end of this period:
- Beginning: when spouses begin living separate and apart
- Ending: when the divorce is finalize
This divorce finalization waiting period applies to everyone who is getting divorced based on the grounds of “irreconcilable differences.” That’s pretty much everybody; it’s what people refer to as “no-fault” divorce.
However, you can avoid the Divorce Finalization Waiting Period by filing for divorce on fault-based grounds (such as adultery, abandonment, and others). However, almost no one does that because it would involve having to prove the fault-based grounds or the other person admitting to it (unlikely). Further, there isn’t a financial benefit to choosing fault-based grounds over “no-fault,” and judges tend to hate it when people try to prove fault. Additionally, if you want an uncontested divorce in Illinois, you must file based on “irreconcilable differences” – the “no-fault” grounds for divorce.
Now you understand that the Divorce Finalization Waiting Period will apply to you because your divorce will almost surely proceed based on the grounds of irreconcilable differences, and therefore a waiting period will apply.
“How long is the waiting period for divorce in Illinois?,” you ask.
The default “irreconcilable differences” waiting period is 2 years. But if both parties agree, you can waive that 2 year period so that the Divorce Finalization Waiting Period is only 6 months. And most people don’t have a problem meeting the 6 months Divorce Finalization Waiting Period because spouses can even be roommates during that time (as explained above).
This waiting period is really the critical one.