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Irreconcilable Differences

by Wes Cowell, updated 5 November 2015 -- suggest a correction


Illinois is a "no-fault" divorce state.  The days of having to prove adultery, abuse, or habitual drunkenness are gone.  You can get divorced in a day; there is no waiting period.  If your spouse objects, you must wait six months and prove the other elements.  If you want to stay married, you can fight "irreconcilable differences."  Need help?  Call, leave your info, or schedule a consult.


Illinois no longer recognizes "grounds" for divorce. There is only one option: "irreconcilable differences." Irreconcilable differences needs little definition.  Technically, to be granted a divorce, one must prove:

  1. irreconcilable differences have caused the irretrievable breakdown of the marriage;

  2. past efforts at reconciliation have failed, and

  3. future efforts at reconciliation would be impracticable and not in the best interests of the family.

750 ILCS 5/401


The Six Month Separation Period:  You can live together, file for divorce, finalize it the same day you file, and go back home and continue living together.  The six month separation period is not a requirement -- it is an option.   Living "separate and apart" for at least six months creates an irrebuttable presumption that irreconcilable differences have caused the irretrievable breakdown of the marriage.


"Separate and Apart:"  Living separate and apart doesn't mean living at different addresses.  It means no longer living as spouses usually live.  When the law was first passed, the legislators debated about what "separate and apart" means.  Here's the salient portion of that debate:


If the judge determines that living separate and apart they have to be living in separate households, so be it. If the judge determines that living ... apart ... they can be living under the same roof but there is [sic ] no conjugal visits, they ... are living in separate bedrooms, they are doing ... their own laundry, their own meals, whatever, that's up to the judge and that's ... what the case law is today.

83d Ill.Gen Assem., Senate Proceedings, November 3, 1983, at 60.


In re:  Marriage of Kenik Testimony adduced in the Kenik case revealed that, although the parties resided in the same house, they stopped "marital relations" a year before the husband filed for dissolution in May 1985, and they continued to live together through September, 1986 . They used separate bedrooms, had no meaningful communication with each other, and shared the family's fundamental financial obligations.  The Kenik court determined that under the no-fault statute, "dissolution is predicated upon a finding of 'irretrievable breakdown' of the marriage due to 'irreconcilable differences' " and that "this is a state which can be realized without physical distance between the parties." Kenik, 181 Ill.App.3d at 274, 129 Ill.Dec. 932, 536 N.E.2d 982.  The Kenick court concluded the parties had lived "separate and apart" even though they lived in the same household.

In re:  Marriage of Kenik, 181 Ill.App.3d 266 129 Ill.Dec. 932, 536 N.E.2d 982, (1st. Dist., 1989)


In re:  Marriage of Dowd:  Sandra Dowd filed for divorce -- for the third time -- in June 1988. By the time she moved out of the marital home (again!) in July 1988, little conversation occurred between the couple. They still had dinner together, but it was mostly for their son, and any dinner conversation was usually directed toward the son or about the son.  Based on these facts, said the court:


it is apparent that irreconcilable differences existed in this case and that an irretrievable breakdown of the marriage occurred long ago. The evidence established that the legitimate objects of matrimony had been destroyed over the years, that the parties were unable to live together as husband and wife, and that no prospects of reconciliation existed. Although no physical separation . . .  had occurred prior to the dissolution, the parties had been living "separate and apart . . . ."  We conclude, therefore, that the trial court did not err in determining that the marriage between the parties should be dissolved under the no-fault provision of the Act.

In re:  Marriage of Dowd573 N.E.2d 312, 214 Ill.App.3d 156 (Ill.App. 2 Dist., 1991)


Skipping the Waiting Period:  If you want to get divorced NOW and don't want to wait, that's easy enough. You need only  prove the three elements laid out, above.  It's simple if you both agree.  You may use our Quick Online Divorce service and we'll give you a script to read to the judge at your hearing; or you may hire us to represent you in court.  You'll answer 20 questions; every answer will be "yes;" ( "yes . . . yes . . . yes . . . yes"); and you'll walk out divorce.  It takes about ten minutes.


Bifurcation -- "Reserving" Issues:  Every divorce is really two trials in one.  First we do the divorce -- dissolving of the bonds of matrimony.  It takes five minutes.  The court makes findings (jurisdiction over the parties, irreconcilable differences, etc.) and pronounces the couple divorced.  Once that's done, we immediately turn our attention to the second trial:  the issues of the children, property division, and maintenance.  


The second trial can take a long time and cost a lot.  So, why not just get divorced today and put the property / kids / maintenance issues on the back burner until everyone feels like getting around to it?  Mostly its because one or both spouses wants to hold out for a "global settlement" on all issues before concluding the case.  Courts avoid such situations, too, because legal certainty is better than ambiguity and property rights stemming from the marriage may "become entangled with supervening rights of third parties, including susequent spouses."  In re:  Marriage of Cohn, 93 Ill. 2d 190 (1982)   The general rule is you do-it-all-together at the same time as two-trials-in-one.


"Bifurcation" is the exception to the do-it-all-together rule.  In a "bifurcated divorce" the court dissolves the bonds of matrimony relatively quickly and reserves all other issues (the second trial) for a later date.  The law says:


(b) Judgment shall not be entered unless, to the extent it has jurisdiction to do so, the court has considered, approved, reserved or made provision for the allocation of parental responsibilities, the support of any child of the marriage entitled to support, the maintenance of either spouse and the disposition of property. The court shall enter a judgment for dissolution that reserves any of these issues either upon (i) agreement of the parties, or (ii) motion of either party and a finding by the court that appropriate circumstances exist. 

750 ILCS 5/401(b).


Agreement of the Parties:  The law says that the court "shall" enter a divorce judgment that reserves some issues if the parties agree.   Courts universally interpret the word "shall" as "may."  This is because of the inherent power imbalance in some marriages.  Judges are on the lookout for agreements to reserve some issues where there is no good reason to delay resolution and the reservation may work a hardship on one party.


Courts will reserve entering a parenting schedule, for example, where one spouse is facing a military deployment.  Courts sometimes reserve child support where a parent is between jobs (this typically lasts a few weeks at the most).  Where it doesn't make sense to address a particular issue, the court doesn't want to waste time, either.  You cannot, however, tell the judge "just forget about this and that . . . we'll take care of it ourselves out of court" and expect to get away with it.

Appropriate Circumstances:  If you NEED to get divorced but your spouse won't cooperate and you can't afford the wait for a trial, you can ask the court to "bifurcate" your divorce.  You'll have to show "appropriate circumstances."  What qualifies as "appropriate circumstances?  Here are some examples:


  • Pregnant wife wanted to marry the father of her about-to-be-born child and new husband could provide health insurance for child that current husband could not.  In re:  Marriage of Kenick, 181 Ill.App.3d 266, 536 N.E.2d 982 (1st Dist., 1989).

  • High conflict divorce, including verbal altercations and physical violence "too numerous occasions to count" including an episdoe where one of the children was struck, had negative impact on the children.   In re:  Marriage of Tomlins and Glenn, 2013 Ill.App. 3d 120099

  • Terminally ill husband with 6 -12 months to live allowed to bifurcate divorce so he could dispose of his share of marital assets according to his wishes.  In re:  Marriage of Breashears, 2016 IL App. 152404 (1st Dist., 2016). 

  • Terminally ill wife alleging "mental cruelty" (back when that was a ground for divorce in Illinois) allowed to bifurcate to permit her to dispose of her share of marital property according to her wishes.  Copeland v. McClean, 327 Ill.App. 3d 855 (4th DIst., 2002).

  • Terminally ill wife alloed bifurcated divorce from mentally abusive husband whose conduct contributed to the deterioration of her health and where parties executed prenuptial agreement and most property held separately.  "In this case, benefit to the emotional status of an elderly, very ill woman, was correctly determined to be "appropriate circumstances."  In re:  Marriage of Blount, 197 Ill.App.3d 816 (4th Dist., 1990).



Fighting Irreconcilable Differences:  If you want to try to save your marriage, Illinois' new "no fault" law isn't much different than the old law.  I've fought against many divorces and have helped save many marriages.  Those who try, succeed (that is, they reconcile) about half the time. 


To fight irreconcilable differences, you must give enough evidence to counter your spouse's proof of one of the three elements:

  1. irreconcilable differences have caused the irretrievable breakdown of the marriage:  What differences between spouses are irreconcilable?  Your spouse, if asked, probably couldn't come up with very many differences, let alone any differences that are irreconcilable.  What, he doesn't like the way you park the car?  She doesn't like how you leave your socks on the bathroom floor?  Challenge yourself:  name a difference between you and your spouse that is irreconcilable.  I can think of only one.  Call me to learn about it.  Note, however, that if you've lived separate and apart for at least six months, the court considers this element to be proven, automatically.

  2. past efforts at reconciliation have failed:  Really?  What efforts?  Have you been to counseling?  Have you talked with your clergy?  Have you even talked?  What efforts, specifically, have you two engaged in, to try to save the marriage?

  3. future efforts at reconciliation would be impracticable and not in the best interests of the family:  How would trying to talk and trying to go to counseling not be in the best interest of the family? 


If you're trying to save your marriage, give me a call.   We fight these good fights.

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