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Who May Marry
In Illinois, an unmarried man and an unmarried woman, both of sound mind and both at least 18 years old, may marry without the permission of others. Men and women between 16 and 18 years old may marry if they have the consent of both parties' parents or guardians, or with judicial approval. Illinois law prohibits marriage of people who are already married, as well as marriage between an ancestor and descendant, brother and sister (even if siblings by adoption), aunt and nephew, and uncle and niece. First cousins are not allowed to marry each other unless they are both at least 50 years old or they can prove one of the parties to the marriage is permanently and irreversibly sterile. Illinois is obligated by the Constitution of the United States to give full faith and credit to any marriage recognized by any other state.
License Requirements
Marriage licenses may be obtained through the clerk of court in any county in Illinois. Each applicant must provide his or her name, address, date and place of birth, gender, social security number, and occupation. If either party was married before, the application must include information concerning the previous marriage, and where and when it was dissolved or declared invalid, or the date and place of death of the former spouse. The application also must include the parents' names and addresses and a statement as to whether the parties are related to each other. Marriage license applications must be signed by the parties and accompanied by a licensing fee and proof that the parties are of legal age to marry and that the marriage is not prohibited for any reason.
When the county clerk provides the marriage license, he or she gives the couple written information regarding sexually transmitted diseases, inherited metabolic diseases, and fetal alcohol syndrome. Within ten days after the marriage is solemnized, the person officiating the marriage ceremony must complete the marriage certificate form and forward it to the county clerk, who then registers the marriage.
Prenuptial Agreements
A prenuptial or premarital agreement, also known as an antenuptial agreement, is a contract between parties made before they are married regarding what rights each has to the other's property upon dissolution of the marriage, legal separation, or death. Prenuptial agreements made in Illinois after January 1, 1990, are governed by the Uniform Premarital Agreement Act. These contracts are valid and enforceable in Illinois if they are made voluntarily, are fair and reasonable, use precise words, are in writing, and are signed by both parties.
Rights Within Marriage
Spouses have an obligation to support one another and their children. Providing necessities such as food, clothing, and shelter is the responsibility of both spouses. Married individuals have the right to one's own earnings, to sue and be sued (including the right to sue each other), to make contracts, to act as each other's attorney in fact or agent, and to transfer property. Spouses are responsible for each other's contracts, debts, and damages, and must provide a home and support. When one spouse dies, the surviving spouse typically has the right to receive a certain percentage of his or her spouse's property. It is difficult, through not impossible, to disinherit a partner to a valid marriage.
Grounds for Dissolution
In order for an Illinois court to grant a divorce, at least one of the parties must be a resident of Illinois at the time the action is filed and must maintain that residency for a minimum of 90 days prior to the entry of the judgment. Divorce may be granted on no-fault grounds or on fault grounds.
A judge may grant a no-fault divorce if the parties have lived separately for a continuous period of more than two years, there has been an irretrievable breakdown of the marriage due to irreconcilable differences, and attempts to reconcile have failed or future attempts would not be in the best interest of the family. If the parties are in agreement that the marriage should be dissolved, and they have lived separately for six months, they may waive the two-year separation requirement by signing a written stipulation.
Divorce granted on fault grounds means that the dissolution of the marriage is based on one spouse's fault or misconduct. Although the fault of a party may not be considered by a judge in dividing property, awarding child support, or awarding spousal maintenance, wrongful behavior may be considered when the judge is determining child custody if the behavior is relevant to the child's or children's best interests. In Illinois, the grounds for a fault divorce include:
Minimizing Litigation and Attorney Fees in Divorce Cases
Although Illinois law does not require that a person be represented by an attorney, due to the complexities of the substantive laws and procedural laws in divorce cases, each person should be represented by an attorney so that their rights can be protected. Prior to seeing an attorney for a divorce, a person should make a list of all assets and debts which they know exist, gather available information concerning those assets and debts, as well as the incomes of both spouses.
People who are going through a divorce may agree with one another as to the resolution of all of the issues that have or will arise in their case; in doing so, Illinois encourages the use of postnuptial agreements, commonly referred to as Marital Settlement Agreements. Such an agreement is a contract which adjusts, defines, and details all of the rights, duties, and obligations which will result when the marital relationship is dissolved. The contract usually becomes incorporated into and becomes part of the Judgment of Dissolution of Marriage, although in certain cases, only certain sections of the contract should be incorporated into the final Judgment. Although these agreements may be oral, the better practice is that they be written. These agreements normally resolve such issues as child custody and visitation, child support, spousal maintenance, division of marital property and debts, allocation of attorney fees, as well as many other related issues. It is important to note that matters involving support and property division may have serious income tax consequences which need to be addressed.
Matters on which the parties disagree, however, must be decided by a court. The litigation process may begin with court appearances to resolve temporary custody, visitation, child support, spousal maintenance, and attorney fee issues, as well as to have injunction orders entered to prevent dissipation of property. After the attorneys have discovered the existence of all of the property of the parties and the value thereof, have ascertained the income and debts of the parties, and have completed discovery regarding all other issues in the case, the parties may request a pre-trial conference with a judge to try to settle all disputed issues. Any issues that are not settled at the pre-trial conference must be decided by the court at a trial.
Child Custody
Child custody is determined by a court based upon the best interests of the children. Some of the factors which the courts consider in determining what is in the best interests of the children are the sincerity of each parent's desire to have custody, the wishes of the children, the interaction and interrelationship of the children with their parents, siblings and others, the children's adjustment to their home, school, and community, the mental and physical health of the individuals involved, past physical violence on the part of each parent, the ongoing occurrence of domestic abuse, and the willingness and ability of each parent to encourage a close and continuing relationship between the other parent and the children.
Having custody of a minor child can mean sole legal custody, which is the right to make major decisions affecting the child's life (such as medical care, education and religion), and normally also includes physical custody, which is the actual possession and control of the child subject to reasonable visitation by the non-custodial parent. If the parents have joint legal custody, the children reside mostly with one parent, known as the residential parent, who is responsible for the routine decisions affecting the children, but both parents share the responsibility for and have a say in making the major decisions regarding the children. If they have joint physical custody, both parents are involved in even the day-to-day decisions affecting their children, and the children spend time with both parents, although not necessarily an equal amount of time with each. In matters where the parties have joint custody, the time each parent spends with their children is known as parenting time. Also, in order for a court to award joint custody, it must determine that the parents have the ability to cooperate effectively and consistently with each other in matters that directly affect the joint parenting of the children. The court must also order the parents to produce a Joint Parenting Agreement which, among other things, will normally provide for mediation of future disputes regarding the children. Child custody is modifiable by a court if changing circumstances warrant a modification.
Visitation and Parenting Time
Typically, the non-custodial parent is granted visitation rights unless the court feels that such visits would be detrimental to the children. Parents may make child visitation agreements themselves, but if a friendly agreement cannot be reached, the court sets a schedule for visitation, or it orders that the non-custodial parent be allowed reasonable visitation. Since the term "reasonable" is very subjective, the better practice is to have a detailed visitation provision so that the parties and the children have more certainty as to when the children will be with each parent. Certain other people, such as grandparents, who have close relationships with the children, may also be allowed some form of visitation. Visitation is modifiable by a court if changing circumstances warrant a modification.
Child Support
Child support is financial assistance provided by the non-custodial parent (or, in the case of joint custody, by the non-residential parent) to help support the children. Child support is not deductible by the paying parent and is not taxable to the recipient parent. The amount of child support a court orders is based on statutory guidelines which militate that a percentage of the payor's net income from all sources be paid depending on the number of children. For one child, the percentage is 20 percent, two children 25 percent, three children 32 percent, four children 40 percent, five children 45 percent, and six or more children 50 percent. The court can consider other factors affecting the amount of child support it will order, including each parent's income, the children's needs (including special needs such as medical and psychological needs), the needs of the parents, and the standard of living the children would have enjoyed if the parties remained married. Child support is an independent obligation and must be maintained despite any other problems between the parents, such as disagreements about visitation.
A recently enacted federal law requires employers to withhold wages from employees who are under a court order to provide child support after January 1, 1994. In Illinois, the law provides that if a court receives evidence that a parent is even one month behind in paying child support, the court must order the payment to be withheld from the person's income. The court may also enter an order requiring the paying parent's employer to withhold wages from the paying parent and pay that sum directly to the recipient parent or to the clerk of the court who sends it to the recipient parent. A court also may order an unemployed person who is obligated to pay child support to seek employment and to provide the court with proof that he or she is diligently looking for employment. Child support is modifiable by a court if changing circumstances warrant a modification. Child support can only be modified (increased, decreased or abated) by a court, and past due payments of child support accrue interest and are not dischargeable in bankruptcy.
Spousal Maintenance
Spousal maintenance, formerly known as alimony, is financial support provided by one ex-spouse to the other. Spousal maintenance is normally deductible by the paying parent and taxable to the recipient parent if certain criteria are met. Either spouse may seek spousal maintenance. Factors that a court evaluates in setting spousal maintenance include the income and property of each party, including marital property apportioned and non-marital property assigned to the parties; the needs of each party; the present and future earning capacity of each party; any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having foregone or delayed education, training, employment, or career opportunities due to the marriage; the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment or is the custodian of a child making it appropriate that the custodian not seek employment; the standard of living established during the marriage; the duration of the marriage; the age and the physical and emotional condition of both parties; the tax consequences of the property division upon the respective economic circumstances of the parties; and contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse. Maintenance may be either temporary or permanent. If a party agrees to give up a claim for maintenance, it may not be renewed at a later date unless the right to do so is reserved. Maintenance can only be modified (increased, decreased, or abated) by a court, and past due payments of maintenance are not dischargeable in bankruptcy.
Division of Property
In divorce actions, courts are authorized to fairly divide all marital property owned by either spouse alone, together with a third party or with the other spouse. Marital property is defined as all property acquired by either spouse during the marriage, except the following, which is known as non-marital property: property acquired before the marriage; property acquired by gift or inheritance; property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift or inheritance; property acquired by a spouse after a judgment of legal separation; property excluded by valid agreement of the parties; and any judgment or property obtained by judgment awarded to one spouse from the other spouse. For purposes of distribution of property, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage, including non-marital property transferred into some form of co-ownership between the spouses, is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership.
In a divorce proceeding, the court will assign each spouse's non-marital property to that spouse and will also divide their marital property, without regard to marital misconduct, in fair and equitable proportions (not necessarily equally) considering all relevant factors, including the contribution of each party to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property, including the contribution of a spouse as a homemaker or to the family unit; the dissipation by each party of the marital or non-marital property; the value of the property assigned to each spouse; the duration of the marriage; the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live in it for reasonable periods, to the spouse having custody of the children; any obligations and rights arising from a prior marriage of either party; any valid antenuptial agreement of the parties; the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; the custodial provisions for any children; whether the apportionment is in lieu of or in addition to maintenance; the reasonable opportunity of each spouse for future acquisition of capital assets and income; and the tax consequences of the property division upon the respective economic circumstances of the parties.
Special attention is paid to the particular needs of the parties in making the division. In the case of a business or another kind of property that cannot be split, the court will award the property to one spouse and order that party to pay the other for the lost interest in the property. Pensions and other retirement assets accumulated during the marriage are also subject to equitable distribution. In Illinois, a spouse who contributed support and financial resources while the other received an education is entitled to some compensation for his or her investment. It is important to note that marital debts must also be equitably apportioned between the parties.
Invalid Marriages
A Declaration of Invalidity of Marriage (formerly called an annulment) is a judgment issued by a court finding that a couple's marriage is invalid and thus, never legally existed. A distinction must be made between void and voidable marriages. Void marriages are those which never legally existed for any purpose, such as bigamous marriages and marriages between certain family members too closely related by blood. Voidable marriages are those where one of the parties may bring an action to have the marriage declared invalid because of an impediment which existed at the time of the marriage. Voidable marriages may result in cases of fraud or when proper consent for the marriage was not obtained. For example, if one party engaged in fraud regarding his or her willingness to cohabit or to consummate the marriage, or was physically incapable of consummating the marriage, the marriage may be declared invalid. If a party has engaged in fraud regarding paternity or pregnancy, or was under age 18 and did not have parental consent or judicial approval at the time of the marriage, the court may declare the marriage invalid. It is important to note that there are time limits imposed by law wherein a party to a voidable marriage must seek to have the marriage declared invalid or they will be found to have ratified the marriage and have thus waived their right to invalidate the marriage. It is also important to note that a legal annulment is different from an annulment granted by a church. A religious annulment is spiritual, rather than legal in nature, and does not affect the legal status of the marriage. Likewise, a legal invalidation may not satisfy the requirements for a religious annulment. Also, children born during a marriage that later is declared invalid are legitimate. Finally, if a person has entered into an invalid marriage with the good faith belief that they entered into a valid marriage, they may be entitled to maintenance from the other party.
Legal Separation
A legal separation involves many of the same procedures as dissolution. A court may make decisions regarding custody, visitation, child support, spousal maintenance, and attorney fees. However, the court does not decide the property rights of the parties. After a Judgment of Legal Separation, the couple remains legally married, and unless and until a Judgment of Dissolution is entered, remarriage is forbidden. A legal separation is granted on the basis of a party living separate and apart from their spouse without fault. Sometimes a legal separation is sought by those whose religious beliefs prohibit divorce but who still desire child support and spousal maintenance. It should be noted that any property acquired by a spouse after the entry of a Judgment of Legal Separation is excluded from marital property should the parties subsequently obtain a dissolution.
Illinois law presumes a man is the father of a child if any of the following elements apply:
Domestic Abuse
Domestic abuse -- also called domestic violence -- is defined by the Illinois Domestic Violence Act of 1986 as physical abuse, harassment, interference with personal liberty, willful deprivation, or intimidation of a family or household member. When people talk about domestic abuse they usually mean the abuse of a woman by her present or former husband or boyfriend; "child abuse" and "elder abuse" often are referred to separately. Domestic abuse includes actual or threatened physical harm, sexual abuse, and assault to the extent that immediate physical harm is feared. The term also includes emotional abuse, such as harassment, intimidation, and threats.
There are several options available to a victim of domestic abuse. A victim may file criminal charges, file a civil suit seeking damages, or seek an order of protection against the abuser. Usually, the first step is to seek an order of protection from a family or county court.
For a court order to be granted, a petition must be supported with evidence of the abuse; thus, the abused person must fill out an affidavit describing the events or incidents surrounding the abuse, the effects of the abuse on the petitioner, and the need for protection. When completing the paperwork, it is helpful if the abused person provides a picture of the abuser. If a picture is unavailable, a description of the offender is needed along with the offender's work and home addresses. A prepared statement of all incidents of abuse, past and present, and including dates and notes, can help document the need for protection.
If necessary, the abused person may request an emergency order of protection. These orders also are called temporary or ex parte orders of protection. An emergency order might be necessary when an abused person is in danger and the protection is needed immediately. This kind of order of protection is valid only for up to 21 days but may be extended by the court for good cause shown.
Regardless of whether the accused person attends the court hearing, the abused person -- or a representative if he or she is unable to attend due to age or disability -- must be present. The hearing is the opportunity to present evidence of abuse and for the person accused of the abuse to respond. At the hearing, the person alleging abuse should present medical records, police reports, and all other factual data which may be used as evidence of the abuse.
At this point, the judge usually rules on the matter by granting the petition or dismissing the matter. In order to grant the petition, the judge must believe that the petitioner needs protection for his or her safety. If the judge dismisses the matter, he or she does not believe that the request for protection is supported by the evidence.
Usually an order of protection prohibits the offender from contact with the victim, including visits to the victim's school or workplace when the victim is present. In some cases, the court may order a trial for cases in which the abuse is denied. A judge also may include other orders in the order for protection, such as temporarily changing child custody or visitation arrangements of children, granting the petitioner exclusive use of the residence, making the abuser pay restitution or receive counseling, or amending child support or spousal maintenance arrangements.
Violating an order is a criminal offense. Even if the officer does not make an arrest, he or she still must inform the victim of his or her right to request criminal proceedings, and advise the victim to seek medical help, take photographs to document the abuse, and keep evidence such as damaged clothing. Law enforcement officers also must file reports of every incident and investigate any believable allegations of abuse.
Child Abuse
Child abuse is a serious problem that may take many forms, including neglect, physical abuse, mental injury, and sexual abuse. Threatened injury, including any statement, overt act, condition, or status that would be considered a risk of child abuse, is also included in the definition of child abuse. Illinois has numerous laws concerned with protecting children from abuse, including the Abused and Neglected Child Reporting Act, the Children's Advocacy Center Act, and the Child Sexual Abuse Prevention Act.
Neglect is the failure of a person responsible for a child to supply necessary food, clothing, shelter, or medical care when that person is able to do so, or the failure to protect the child from imminent and serious danger to his or her physical or mental health. Neglect may only be charged against a person who is legally responsible for the child. Neglect does not, however, cover instances where a parent or guardian in good faith relies on spiritual prayer for a sick child.
Physical abuse is any physical injury, actual or threatened, inflicted upon a child by other than accidental means by a person responsible for the child's well-being. Physical abuse also includes any physical injury that cannot be explained by the child's medical history, and any means of discipline or control not authorized by law as acceptable for use with persons who are mentally challenged or impaired.
Mental injury is any harm done to a child's psychological capacity or emotional stability. Evidence of such harm is any observable or substantial impairment of a child's ability to function normally as compared with other children of the same culture. Repeated and habitual mental or emotional abuse by the person responsible for the care and nurturing of the child can cause serious problems in the child. Symptoms of mental injury may include emotionally disturbed behavior, low self-esteem, inappropriate interaction with others, inability to communicate with others, extreme hostility and anger, anti-social behavior, and speech and learning disorders.
Sexual abuse occurs when any person in a position of authority over a child has sexual contact with the child. Sexual contact includes any touching, fondling, or molestation, clothed or naked, of intimate parts of the child or the abuser. Intimate parts include the genitals, groin, inner thighs, buttocks or breasts. A person in a position of authority over the child includes a parent or person acting in the role or place of a parent. A person in a position of authority also includes anyone responsible for, either directly or through another person, the care, supervision, health or welfare of the child, no matter how brief, at the time of the abuse. Sexual abuse can also include involving a child in prostitution or pornography.
Mandatory reporters are obligated to report any abuse or neglect immediately to the Illinois Department of Children and Family Services (DCFS). Failure of a mandatory reporter to report suspected child abuse is a class A misdemeanor, unless the reporter is a physician, in which case the physician will be reported to the Illinois State Medical Disciplinary Board.
Persons who report abuse or neglect in good faith are immune from civil or criminal liability. This means that if an investigation shows there was no abuse, the reporter cannot be sued as long as he or she reported the alleged child abuse with an honest belief and without knowledge of any facts or events contradicting the abuse or neglect.
The initial objectives of the investigation by DCFS workers are to evaluate the existence of any physical or emotional damage to the child, identify the risk of harm to the child, determine the urgency of the claim, and decide whether immediate intervention is required. After these factors have been assessed, the goals are to determine whether or not the family is a candidate for treatment, and to initiate and monitor treatment and its progress. If the worker decides that judicial intervention is needed, an action is initiated in juvenile or family court.
High-Risk Adults
Included in the Illinois Domestic Violence Act of 1986 are provisions dealing with the problem of abuse of high-risk adults with disabilities. A high-risk adult with a disability is someone over the age of 18 who has a physical or mental disability that prevents the adult from being able to protect himself or herself. The definition includes elderly people with disabilities. Family or household members are covered under the Act as persons who may be liable for abusing high-risk adults with disabilities, as well as other persons who have responsibility for these adults, including workers in hospitals, nursing homes, or other similar care facilities. Abuse of high-risk adults with disabilities includes physical abuse, sexual abuse, neglect, and exploitation, including financial exploitation. Neglect includes failure to provide food, shelter, clothing, personal hygiene, and medical care, unreasonable confinement, and failure to protect the high-risk adult from abuse or from other hazards to their health or safety.
People who know of or suspect abuse or neglect may make a report of any known or suspected incident of abuse or neglect to the Illinois Department on Aging. Law enforcement officers in Illinois are required by law to assist high-risk adults in petitioning for an order of protection. The police also have the authority to enter premises or to make warrantless arrests in situations in which there is the probability of death or great bodily harm to a high-risk adult, or to prevent criminal activity. Health care workers must assist suspected victims of abuse by offering immediate information about services available in Illinois.
Other Remedies for Abuse
Any person who has been abused may seek an order of protection. In addition, the abuse of some victims must be reported by designated mandatory reporters to agencies designed to address the abuse. There are other remedies for victims of abuse. Abusers are subject to arrest for the crimes they commit. Domestic battery, aggravated battery of a child or institutionalized mentally retarded person, aggravated battery of a senior citizen, and criminal neglect of an elderly or disabled person are specific crimes in Illinois. Victims may wish to work with prosecutors to have offenders tried on criminal charges. It is also possible under some circumstances to file a civil lawsuit against offenders for damages. Criminal hearings and civil lawsuits are discussed further in the chapters, Process of a Case and Criminal Law in this Guide
People with any questions about abuse or about other aspects of family law, such as marriage or divorce, should contact the agency or organization that deals with their problem, or should seek the advice of an attorney.
Illinois Department of Children and Family Services, Division of Child Protection, 406 Monroe Street East, Springfield, IL 62701, phone: (217) 785-1700. Contact this organization for information, to report child abuse and neglect, or to order the free brochure, Care Enough to Call Chicago phone: (312) 814-6864.
Department of Public Aid, Division of Child Support Enforcement, Prescott E. Bloom Building, 201 South Grand Avenue East, Springfield, IL 62762, phone: (217) 524-4529.
Family Violence Prevention Fund, 383 Rhode Island Street, #304, San Francisco, CA 94103-5133, phone: (415) 252-8900.
Illinois Department of Public Health, Office of Vital Records, 605 Jefferson Street West, Springfield, IL 62702-5097, phone: (217) 782-6553. For birth, divorce, death, and marriage records.
Illinois Department on Aging, Division of Older American Services, 421 Capitol Avenue East, #100, Springfield, IL 62701-1789. Call their toll-free number for information about elder protective services at (800) 252-8966.
Illinois State Bar Association, Illinois Bar Center, Springfield, IL 62701-1779, phone: (217) 525-1760. Call or write for the free pamphlets, Adoption; Advice to Newly Marrieds; and Domestic Relations
National Center on Women and Family Law, Inc., 799 Broadway, #402, New York, NY 10003, phone: (212) 674-8200. Call or write for publications such as Child Support and You, $5 publication; Mediation and You, $8 publication; Pensions, $3 publication.
National Clearinghouse on Marital and Date Rape, 2325 Oak Street, Berkeley, CA 94708, phone: (510) 524-1582.
National Council on Child Abuse and Family Violence, 1155 Connecticut Avenue, NW, #300, Washington, D.C. 20036, phone: (202) 429-6695.
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