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If My Spouse is Having an Affair, Will I Get More in an Illinois Divorce? | How Does an Affair Impact a Divorce?

Updated on
November 18, 2019
Article written by
Attorney Kevin O'Flaherty

In this article, we answer the question, “if my spouse is having an affair, will I get more in an Illinois divorce?”  We address the following:

  • What are the grounds for divorce in Illinois?
  • How is spousal maintenance determined in Illinois?
  • How is division of property determined in Illinois divorce?
  • How does an affair impact Illinois divorce?

What Are the Grounds for Divorce in Illinois?

In Illinois the only grounds for divorce is “irreconcilable differences.”  This means that generally, one party’s behavior in causing a divorce will not impact the terms of the divorce.  

How is Spousal Maintenance Determined in Illinois?

Spousal maintenance is a lump sum or ongoing payment that may be awarded as part of a divorce in order to support the spouse with a lower earning capacity.  In Illinois, courts weigh several factors, including the income and the needs of each party to determine whether spousal maintenance is appropriate.  

If spousal maintenance is appropriate, courts generally apply statutory guidelines to determine the amount of spousal maintenance when the combined income of the parties is less than $500,000.00 per year.  If the parties’ combined income is above this amount, courts are free to deviate from the guidelines. 

When guidelines are applied, spousal maintenance is calculated by subtracting 25% of the recipient’s net income from 33.33% of the payor’s net income, with a cap at 40% of the parties’ combined incomes.  The duration is determined using a table that is based on the length of the marriage.  
Whether one party had an affair that led to the divorce does not factor into the court’s determination of whether spousal maintenance is appropriate or how much to award if the court determines spousal maintenance is appropriate. 

For more, check out our article: Illinois Spousal Maintenance Explained

How is division of property determined in Illinois divorce?

Illinois is an “equitable division” state, meaning that rather than dividing marital property equally between divorcing spouses, courts will weigh several factors to determine how marital property will be divided.  These include but are not limited to the contribution of each spouse in acquiring the property, including contributions as a homeowner; the economic circumstances of each spouse; the duration of the marriage; and the health and needs of each party.  

Parties’ behavior in causing a divorce, including engaging in an affair, will generally not factor into the courts’ determination as to how property will be divided. 

For more, check out How is Property Divided in an Illinois Divorce?

How Does an Affair Impact a Divorce in Illinois?

Generally the fact that one party had an affair will not impact the terms of a divorce in Illinois.  As discussed above, it does not factor into whether there are grounds for divorce, how spousal support will be allocated, or how property will be divided.  

The one issue that an affair may impact is child custody, now known as the allocation of parenting time and responsibility.  

How Can an Affair Impact Child Custody in Illinois?

When determining parenting time and responsibility, courts will look at all relevant factors in order to determine what parenting arrangement will be in the best interests of the child.  While the fact that a party had an affair in the past is not likely to be relevant to the child’s best interests’ in a vacuum, the current living situation of each parent does impact this determination.  This includes the child’s potential contact with people that each parent is currently co-inhabiting with or dating.  An affair may also be part of a pattern of behavior that is likely to negatively impact the child going forward, and this may be relevant to custody arrangements.


If My Spouse is Having an Affair, Will I Get More in an Illinois Divorce? | How Does an Affair Impact a Divorce?
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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