How Does My Spouse Cheating On Me Affect My Divorce?


By Martin Sliwinski, Divorce and Family Law Attorney

Despite the emotional turmoil and the profound betrayal associated with a spouse cheating on another spouse, Illinois law does not consider cheating as grounds for divorce. Infidelity cannot be used as a factor in the calculation of maintenance (formerly known as spousal support or alimony) or division of property.

As of January 1, 2016, the state of Illinois only considers one factor as grounds for divorce: the irretrievable breakdown of the marriage caused by irreconcilable differences. This makes Illinois is a No-Fault State.

Ultimately, this means that Illinois law no longer focuses on blame or fault as the reason for divorce—and instead prioritizes the logical distribution of assets and the best interests of the children. Let’s take a look at what this means for your divorce.

If Illinois is a No-Fault State, how can I prove grounds for divorce?

Historically, a party seeking divorce had to show various faults in their spouse—including but not limited to adultery, cruelty, violence, substance use and so forth. As of 2016, Illinois law now identifies “irreconcilable differences” that cause an “irretrievable breakdown” of a marriage as the sole grounds for divorce.

If “the court determines that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family,” then a couple has grounds for divorce according to the Illinois Marriage and Dissolution of Marriage Act.

Essentially, the law states that:

  1. The parties have marital issues that can’t be fixed
  2. The parties tried to fix their marriage but could not resolve their differences

A judge may ask, “Do you think your marriage is dead?” and “Do you think you cannot fix your marriage?” If the couple answers yes to both questions, there is likely grounds for divorce.

Why isn’t cheating grounds for divorce?

In becoming a No-Fault State, Illinois abolished cheating, abuse and cruelty—called marital misconduct—as well as other forms of grounds for divorce. Additionally, the Illinois Marriage and Dissolution of Marriage Act was revised specifically to say that one of the fundamental purposes of the act is to “eliminate the consideration of marital misconduct in the adjudication of rights and duties incident to dissolution of marriage, legal separation and declaration of invalidity of marriage.” 750 ICLS 5/102 (Illinois Marriage and Dissolution of Marriage Act)

This change establishes that a spouse’s cheating or negative conduct is not grounds for divorce and is not considered when deciding the rights and obligations of the parties in a divorce. This includes:

  • Property Division in Divorce: The Illinois Marriage and Dissolution of Marriage Act prevents the Judge from considering misconduct when dividing property, stating that “it also shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors.” 750 ICLS 5/503 (Illinois Marriage and Dissolution of Marriage Act)
  • Maintenance: The Illinois Marriage Dissolution of Marriage Act also prevents the Judge from looking to misconduct when awarding maintenance. “The court may grant a maintenance award for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct, and the maintenance may be paid from the income or property of the other spouse.” 750 ICLS 5/504 (Illinois Marriage and Dissolution of Marriage Act)

Why isn’t my spouse’s misconduct heard or addressed?

This law confuses many clients, who typically wonder: “Why isn’t my spouse’s misconduct heard or addressed?” The law ultimately aims to make filing for divorce easier and to refocus the divorce toward financials and the best interests of the child or children.

With a No-Fault State, you do not need abuse or cruelty as grounds for divorce, and you never need to prove a spouse has cheated. These changes are intended to make filing for divorce accessible and prevent the parties from spending large amounts of attorney’s fees trying to prove grounds for divorce. Instead, you can focus on the financial and parenting impacts of the divorce.

Again, the only factor in Illinois as grounds for divorce is the irretrievable breakdown of the marriage caused by irreconcilable differences. If the parties have lived separate and apart for more than six months (even living under the same roof but in separate bedrooms with separate meals, for example), then you will get an irrebuttable presumption that the Judge should grant the grounds for divorce.

That said, you can still file for divorce earlier than six months if you meet other requirements, such as the 90-day residency in Illinois requirement.

When will marital misconduct be addressed?

Even though Illinois is a No-Fault State, there are certain scenarios where marital misconduct can be addressed.

First, if adultery occurs—such that your spouse spent marital monies on the affair—then you may have a dissipation claim and be entitled to a portion of the marital monies that were spent on an affair. For example: if your cheating spouse spent lavish amounts of money on rings, necklaces, watches or trips to Jamaica, then Illinois law provides an avenue for you to receive your equitable share from the money used on those extra-marital gifts.

Second, if the affair has an adverse effect on your children, then it can be a factor in the allocation of parenting time or decision making for the children. This typically occurs if your spouse’s affair gets in the way of their ability or willingness to parent your children, or if the person your spouse has an affair with is a danger to the children.

Ultimately, being a No-Fault State allows Illinois law to no longer focus on blame or fault—and instead prioritizes the logical distribution of assets and the best interests of the minor children.

Contact Our Divorce and Family Law Firm in Evanston, Chicago, Lake Forest and Oak Brook

It is important to hire an attorney who understands your values. If you are looking for a divorce attorney, contact Stern Perkoski Mendez for a free consultation. We can be reached at (847) 868-9584 and can meet you at our offices in Evanston, Chicago, Lake Forest and Oak Brook, or at another location.

Disclaimer: Please note that everything in this article is general legal information. This article should not be interpreted as legal advice.

For a free consultation, call Stern Perkoski Mendez at (847) 868-9584 or contact us.