When you file a Petition for Dissolution, you must allege specific grounds that entitle you to the relief you are seeking—namely, a divorce. In the past, a person could not be divorced without a very good reason. Now, however, in addition to legal separations, Illinois law offers divorces in two flavors: those where a specific reason is given ("grounds), and those where no reason is given ("irreconcilable differences"). The various grounds are discussed below:
Irreconcilable Differences:
In Illinois we use the term "irreconcilable differences" to describe what others know as a "no fault divorce." To be accurate, it would be proper to view irreconcilable differences as a modified no-fault basis of dissolution, because, unlike other states in which true no-fault grounds exist, there are some minimal prerequisites to receiving a judgment under irreconcilable differences. To be granted a divorce, you must prove that irreconcilable differences have caused the irretrievable breakdown of the marriage, that past efforts at reconciliation have failed, that future efforts at reconciliation would be impracticable and not in the best interests of the family.
In Illinois, to proceed using "irreconcilable differences" as the grounds for divorce the parties must live "separate and apart" for at least two years before their case may be concluded. You may file your case while you're still living together, but you must live separate and apart for two years before the case can be finalized.
The two-year waiting requirement can be waived if both parties sign a special waiver form. Even then, however, they must still live separate and apart for at least six months before the case may be finalized.
Grounds:
The ten traditional grounds for dissolution of marriage in Illinois are specified in 750 ILCS 5/401(a)(1):
Impotence
Impotence is not a common or often-used ground. The seminal case discussing it is from 1912. Kinkaid v. Kinkaid, 100 N.E. 217 (1912). "Naturally impotent" means incurably so, whether the impotence is caused by a disease, a permanent physical defect, or an accident. Griffeth v. Griffeth, 44 N.E. 820 (1896). The statute also requires the impotence to have been in existence at the time the marriage took place.
Bigamy
Bigamy is a ground not only for dissolution of marriage but also for a declaration of invalidity. 750 ILCS 5/212(a)(1). The fact that the petitioner knew or should have known of the earlier marriage is not a ground for denying a divorce, but it may be a factor in deciding whether to grant alimony or maintenance. Belluomini v. Belluomini, 392 N.E.2d 669 (1st Dist. 1979). The statute specifies that children born of a bigamous marriage are legitimate and are entitled to the same considerations regarding child support as children of a monogamous marriage. 750 ILCS 5/212(c), 5/303.
Adultery
Surprisingly, there is little case law addressing the definition of "adultery" and standards of proof. Most cases seem to assume the definition and address other issues, perhaps because "adultery" has a common meaning. BLACK'S LAW DICTIONARY, p. 52 (7th ed. 1999), defines it as "[v]oluntary sexual intercourse between a married person and a person other than the
offender's spouse." This definition seems to be the generally accepted one. In order to establish adultery, there must be proof of a carnal act. Wolfrum v. Wolfrum, 126 N.E.2d 34 (3rd Dist. 1955). Because adultery can seldom be proved by direct evidence, it may be proved by circumstantial evidence.
One may demonstrate facts and circumstances from which adultery can reasonably be inferred. Marcy v. Marcy, 79 N.E.2d 207 (1947). The adultery must be without the fault or provocation of the other spouse. If the person alleging adultery was himself living with a woman other than his wife prior to the time he alleged his wife committed adultery, his wife's alleged adultery may have been provoked by the husband's prior adultery or based on his fault. See Cuneo v. Cuneo, 399 N.E.2d 1384 (2nd Dist. 1980). Note also that adultery is a crime in Illinois. 720 ILCS 5/11-7.
Wilful desertion or absence for the space of one year
Desertion, to constitute a legal ground in Illinois, must be against the will of the petitioner and without reasonable cause and must have lasted for at least one year. Boyd v. Boyd, 207 N.E.2d 350 (5th Dist. 1965). Desertion requires proof of "an actual abandonment and abnegation of all marital relationships with an intent not to return and without legal justification or consent of the other spouse." Lemon v. Lemon, 150 N.E.2d 608 (1958). Since it must be willful and without cause, spouses who choose to sever their marital relationship by mutual consent cannot properly assert statutory desertion as a ground for dissolution. If one spouse asks the other to return, however, and the latter refuses, then desertion exists as a ground. Conversely, if a spouse who left asks to return within the statutory period and is denied, that spouse may not be charged with desertion. Metoyer v. Metoyer, 235 N.E.2d 882 (1st Dist. 1968). Finally, if one of the spouses moves out of the marital residence and files a petition for dissolution of marriage on any ground, he or she may technically be subject to a counterpetition based on desertion once a year has passed. The time that litigation is pending counts toward that one-year minimum period. 750 ILCS 5/401(a)(1). Constructive desertion occurs when one of the spouses through acts of unprovoked brutality or cruelty forces the other spouse out of the marital residence. Dayan v. Dayan, 229 N.E.2d 568 (5th Dist. 1967).
Habitual drunkenness for the space of two years
In Murphy v. Murphy, 334 N.E.2d 779 (1st Dist. 1975), the court defined "habitual drunkenness" as:
an irresistible habit of getting drunk . . . a fixed habit of drinking to excess . . . an involuntary tendency to become intoxicated, which is acquired by frequent repetition, — such a frequent indulgence to excess as to show a formed habit and inability to control the appetite.
Quoting Garrett v. Garrett, 96 N.E. 882 (1911).
The two-year period referred to in the statute need not be continuous, and short, voluntary periods of abstention will not affect the finding of habitual drunkenness. Bissekumer v. Bissekumer, 57 N.E.2d 521 (2nd Dist. 1944).
Gross and confirmed habits caused by the excessive use of addictive drugs for the space of two years
The statute itself clarifies that "excessive use of addictive drugs" refers to "use of an addictive drug by a person when using the drug becomes a controlling or a dominant purpose of his life." 750 ILCS 5/401(a)(1).
Attempting the life of the spouse by poison or other means showing malice
It is interesting that 750 ILCS 5/401(a)(1) still provides that, as a ground for dissolution, an attempt on the life of a spouse must be not only without provocation but also by a means showing malice. It is difficult to think of any means of attempting to take a spouse's life that would not show malice, but the statute is what it is. See In re Marriage of Davenport, 416 N.E.2d 88 (4th Dist. 1981) (wife's pouring and lighting kerosene on bed where her husband was lying established grounds entitling him to divorce based on mental cruelty).
Extreme and repeated physical or mental cruelty
Other than the no-fault provisions of 750 ILCS 5/401(a)(2), this ground is probably the most common for dissolution of marriage. "Extreme and repeated mental cruelty" has been defined as a pattern of abusive and humiliating treatment, calculated or obviously of a nature to torture, discommode, or render miserable the life of the spouse, which actually affects the physical or mental health of the spouse. Deahl v. Deahl, 300 N.E.2d 497 (1st Dist. 1973). There must be at least two incidents to meet the "repeated" requirement. The appellate court has defined "mental cruelty" as follows:
Mental cruelty is a course of unprovoked, offensive conduct toward one's spouse which causes embarrassment, humiliation, and anguish so as to render the spouse's life miserable and unendurable, and which actually affects the spouse's physical or mental health.
In re Marriage of Reeder, 570 N.E.2d 876 (3rd Dist. 1991).
In determining whether conduct constitutes extreme and repeated mental cruelty, the court is to apply a subjective rather than an objective standard. Akin v. Akin, 260 N.E.2d 481 (4th Dist. 1970). The court's function is not to determine whether the respondent's conduct would have been cruel to a reasonable person or to a person of average sensibilities. It is to determine whether it was, in fact, cruel to the petitioner.
Extreme and repeated physical cruelty is established by two acts of physical violence committed on separate occasions or with enough time between the actions so that they can be considered separate. Kovack v. Kovack, 268 N.E.2d 258, 259 (1st Dist. 1971). The actions must be both extreme and repeated, and a single act of physical cruelty is insufficient as a ground for dissolution of marriage. Godfrey v. Godfrey, 1 N.E.2d 777 (4th Dist. 1936). Slight acts of physical cruelty are also insufficient. Bidstrup v. Bidstrup, 196 N.E.2d 512 (2nd Dist. 1964).
Conviction of a felony or other infamous crime
For the definition of a "felony," see 720 ILCS 5/2-7 (a felony is a crime punishable by death or imprisonment for one or more years). See also In re Marriage of Ducey, 428 N.E.2d 1165 (5th Dist. 1981) (degree of offense must be measured by statute, and court cannot simply find offense comparable to felony and thus basis for divorce).
Infection of the spouse with a sexually transmitted disease
There is no appellate or Supreme Court case in Illinois discussing infection with a sexually transmitted disease as a ground for dissolution of marriage. Perhaps because the plaintiff may proceed on other grounds, or perhaps because of the sensitive nature of these allegations, this ground is rarely used. However, the statutory language is broad, and more venereal diseases than syphilis and gonorrhea are covered. It is unclear if acquired immune deficiency syndrome (AIDS) would be covered. It would seem so, but to date there has been no ruling to that effect. You should be aware that intentional infliction of these diseases may also constitute a tort, which you can plead as a cause of action separate from the one for dissolution.
Lack of cause or provocation:
The section of the statute that cites the ten grounds begins the list by stating the following: "That, without cause or provocation by the petitioner, the respondent. . ." 750 ILCS 5/401(a)(1). The rules of statutory construction dictate that this predicate governs all the following ten grounds and that the petitioner, for each ground asserted, must allege that it was without the petitioner's fault or provocation.
Conclusion:
In most cases, grounds is not a topic that should consume too much discussion. It is usually dealt with is an expeditious manner. However, it is a matter that demands strict compliance in order to be awarded a Judgment for Dissolution. If you have any questions, don't hesitate to ask me!
Jon D. McLaughlin
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