“Adultery” or having an affair is often a cause leading to divorce. Until 2016, adultery remained a ground for divorce in Illinois. Then Illinois became a pure “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 did not consider fault.
My spouse is committing adultery. I can prove it. Won’t this provide a substantial advantage to me in a divorce?
Generally: 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 there were irreconcilable differences in the marriage, the money he spent generally has to be put back into the marital pie for division by the divorce judgment. Illinois law provides for limitations regarding dissipation claims in divorce cases as being either 3 or 5 years. Thus, the law states, “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 there’s an effect on the children. The 2016 law addressed the history of Illinois’ divorce law and stated, “In 1977, the Illinois Marriage and Dissolution of Marriage Act became the law of this State. As stated in Section 102 of that Act, among 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, legal separation and declaration of invalidity of marriage.”
Illinois law regarding allocation of parenting responsibility (what most people refer to as custody) has another “no fault” provision. The court cannot consider the conduct of a parent that does not affect that parent’s relationship to the child. Thus, if an affair is discreet and the children are not affected by it, it is not considered.
I suspect my spouse of infidelity. Should I hire a private investigator?
Not for this reason. As shown above, Illinois is now a pure no-fault state. Private investigators are expensive. The valid reasons for hiring a private investigator are not to “prove” adultery—but to address other potential concerns. If you are 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.
