“Adultery” or having an affair is a leading cause of divorce. In 2016, Illinois became a no-fault state. But even before the Rewrite of Illinois divorce laws in 2016, all other aspects of a divorce, including allocation of parenting time, support, and property division didn’t consider fault.
What’s the history of no-fault divorce?
Ronald Reagan signed the first no-fault divorce law in the US as California’s governor in 1969, allowing one spouse to end a marriage unilaterally. Before then, anyone who wished to end a marriage needed to prove their partner had committed an offense like adultery, abandonment, or abuse. The criteria could be tough to meet — in some places, a woman could prove she had been beaten by her husband, for example, but be forced to stay married if the jury did not find he acted with “cruelty.”
My spouse is committing adultery. I can prove it. Won’t this provide an advantage in a divorce?
No. There are no grounds for divorce in Illinois other than no-fault divorce (irreconcilable differences). All the economic elements of a divorce (property distribution, maintenance, child support) must be determined “without regard to marital misconduct.”
But my husband spent a lot of money on his girlfriend. Can that be recouped?
Yes. This is known as “dissipation.” If he spent marital funds (funds earned during the marriage) for a purpose not related to the marriage (on the girlfriend) during a time when the marriage was in trouble, the money he spent generally must be put back into the marital pie for division by the divorce judgment. Illinois law provides for limitations periods for how long you can go back in making claims for dissipation. Illinois law limits dissipation claims to either 3 or 5 years. Thus, the law states that “no dissipation shall be deemed to have occurred prior to 3 years after the party claiming dissipation knew or should have known of the dissipation, but in no event prior to 5 years before the filing of the petition for dissolution of marriage.” And to bring a dissipation claim, one must file a notice of intent to claim dissipation. See the Gitlin Law Firm’s Q&A regarding dissipation and Illinois law.
But what about custody /allocation of parenting time with the children? Doesn’t adultery count?
Only if the affair affects the children. The 2016 law described the history of Illinois’ divorce law. It states that “In 1977, the Illinois Marriage and Dissolution of Marriage Act became the law of this State. [A]mong its underlying purposes are: “*** and eliminating the consideration of marital misconduct in the adjudication of rights and duties incident to the legal dissolution of marriage.”
Illinois law regarding allocation of parenting responsibility (what most people refer to as custody) has another “no fault” provision. The court can’t consider the conduct of a parent that doesn’t affect that parent’s relationship to the child. Thus, if your spouse has a discreet affair and the children are not affected by it, it can’t be considered.
I suspect my spouse of infidelity. Should I hire a private investigator?
Not for this reason. Illinois is a pure no-fault state. And private investigators are expensive. The best reasons for hiring a private investigator are not to “prove” adultery—but to address other potential concerns. So, if you’re considering hiring a private investigator, consult with your lawyer first.
Can my marriage survive an affair?
Yes. Marriage can survive infidelity. But it takes counseling and a willingness by both to work on the marriage and reset the marriage.
