When one spouse betrays the other through adultery, the couple's marriage may end with divorce if the spouses cannot repair their relationship. In Illinois, state law allows for dissolution of marriage based on a variety of grounds, including adultery. The spouse filing for divorce should understand the consequences of Illinois divorce based on adultery as well as other legal options.
Divorce Grounds and Adultery
The Illinois Marriage and Dissolution of Marriage Act lists all grounds for divorce allowed by state law. Section 401 specifically includes a spouse's adultery as a legal basis for an Illinois court to grant a dissolution of marriage. The act does not further define adultery for the purpose of divorce. Other divorce grounds in Illinois include bigamy, desertion of one spouse by the other, one spouse's attempt to kill the other, impotence, habitual addiction to drugs or alcohol, mental or physical cruelty, conviction of a felony crime, sexually transmitted disease given by one spouse to the other and irreconcilable differences.
Contested Divorce Based on Adultery
If one spouse files a divorce petition based on adultery, the other spouse may decide whether to contest the divorce. The non-petitioning spouse may deny that adultery happened at all; if the case proceeds to a divorce trial, Illinois law permits the presentation of evidence from both sides to determine whether adultery occurred. The non-petitioning spouse may also wish to contest the divorce with the hope of avoiding divorce altogether. Even if the petitioning spouse cannot prove adultery as the grounds for divorce, Illinois law lists many other grounds for divorce that a spouse can use to legally end a marriage.
Effect of Adultery on Divorce Judgment
Adultery cannot affect the financial issues in the couple's divorce if the judge decides legal issues such as property division or spousal support. Illinois law does not allow the court to penalize one spouse for marital misconduct. However, a spouse may choose to mention adultery during negotiation of a settlement if the couple attempts to avoid divorce litigation and reach an agreement on their own or with the assistance of attorneys. Adultery usually does not affect the spouses' child custody arrangement unless the court believes that a spouse's misconduct negatively affects parenting ability or the child's well-being.
Alternative to Fault Grounds
Even when a spouse commits adultery, the spouse filing for dissolution of marriage does not necessarily need to identify adultery as the reason for divorce. Rather than litigate a divorce by proving adultery, a spouse may choose to request a divorce based on irreconcilable differences, also known as "no-fault" divorce. In a no-fault divorce, Illinois law simply requires at least two years of separation while the spouses live apart, unless both spouses sign a settlement agreement waiving the two-year requirement and allowing divorce after a separation of six months. Some couples opt for no-fault divorce because they would like to avoid presenting evidence of adultery or other potentially embarrassing topics in court.