It’s a new year and new Illinois divorce laws brought significant changes to the available grounds for divorce. Previously, in situations of infidelity, one spouse could file for divorce under the ground of adultery. The individual was then charged with proving that the infidelity occurred in order to receive an order of divorce. As of January 1, adultery is no longer a ground for divorce in the state. Even in situations of fidelity, the innocent spouse only has the option of filing for divorce under the ground of irreconcilable differences. If the parties meet the requirements, the judge will grant the divorce with no fault found for either party. So, when and how does a court consider the actions of a cheating spouse?
There is a commonly held belief that infidelity on the part of one spouse will result in an automatic financial gain for the innocent spouse. In the state of Illinois, judges do not make financial determinations based on the moral actions. In other words, there is no presumption that bad behavior during the marriage should result in a financial loss.
However, this is not to say that adultery can have no bearing on the division of assets. If the parties are mediating a settlement agreement, infidelity may be used as a bargaining chip to gain a larger payout for the innocent party. This is especially true when the cheating spouse is concerned about having private business go into a public record.
The other way that infidelity may become a consideration during divorce proceedings is if the innocent party pursues called dissipation. This type of financial compensation reimburses the marital estate for money spent on non-marital matters after the breakdown of the marriage. It is based on the theory that there is a marital pot of assets and neither spouse has the right to decrease the value of that pot.
Consider the following example: John and Lisa are separated and going through a divorce proceeding. Lisa maintains an ongoing relationship with her paramour and she spent $5,000 on a vacation and gifts for him. John is legally entitled to the return of that money to the marital pot for distribution between the spouses. If the court ultimately decides to distribute the estate 50/50, Lisa must pay John $2,500 for dissipation.
A cheating spouse is rarely forthcoming with these extramarital expenditures. For this reason, legal discovery is vital to uncovering and proving this type of behavior by a spouse. The process of discovery involves specific rules and guidelines. It is done for the purpose of uncovering relevant evidence. Discovery can become a challenging task, especially without the assistance of an experienced family law attorney.
If you are seeking a divorce within the state of Illinois and infidelity is an issue for consideration, contact the Law Office of Elizabeth J. Chacko, P.C. for a comprehensive consultation. Serving clients in Naperville, Wheaton and Downers Grove, our attorneys can provide your family with an aggressive, but compassionate representation.