Fighting to Save the Marriage
updated 26 September 2019
by Wes Cowell;
Illinois no longer has "grounds" for divorce. All it takes to divorce is proof of "irreconcilable differences." It's harder than it sounds. A divorce is not guaranteed after the papers have been filed. If you're facing a divorce and you think it's just plain wrong, you CAN fight it . . . and win. Need Help? Call, leave your info, or schedule a consult.
Fighting Divorce to Save the Marriage: In Illinois, we have only a single "ground" for divorce: irreconcilable differences. Sounds easy . . . but it doesn't have to be. We used to recognize adultery, habitual drunkenness, and mental cruelty (to name a few) -- and having to prove those grounds made getting a divorce a little harder -- but that all went away in 2016. Although the avenues by which to fight a divorce have been curtailed, a divorce is not guaranteed just because papers have been filed.
Still, you need to recognize that although you probably have many years, or decades, invested with your partner., if your marriage is at the point where you’re talking with a divorce attorney, you’re looking at a fairly difficult road to reconciliation. Still, you’ve been down difficult roads before. Only about 5% of my clients try to fight to save the marriage after the case is filed. Of those who try, about half succeed and stay married.
The Requirement to Obtain a Divorce
Attack "Irreconcilable Differences"
Fight "Differences" - Name 'Em!
The Legitimate Objects of Matrimony
Fight "Irretrievable Breakdown"
Attack "Efforts at Reconciliation"
Fight "Past Efforts at Reconciliation"
Fight "Future Attempts Would Be Impracticable"
Fight "Best Interests of the Family"
Court-Ordered Reconciliation Conference
In General: When fighting a divorce to try to save the marriage, you're trying to do two things in court:
1st: you'll take advantage of the complex and burdensome nature of the court system to help your spouse fully experience the stress and unpleasantness that system can bring to those who casually invoke it for relief in avoidance of the effort of reconciliation; and
2nd: you're trying to slow things down in court to buy time out-of-court to beseech your spouse to weigh the cost, stress, and uncertainty of divorce litigation against the promise of reconciliation.
The Requirements to Obtain a Divorce: In Illinois, a marriage may be dissolved only where two conditions exist:
1) irreconcilable differences have caused the irretrievable breakdown of the marriage; and
2. a) past efforts at reconciliation have failed OR
2. b) future reconciliation attempts would be impracticable and not in the best interest of the family.
Those conditions must be proved in court and it isn't always an easy thing to do. Your job is to fight those requirements on each and every point.
Attack "Irreconcilable Differences:" Illinois law doesn’t require specifics in divorce filings. That allows folks to file a divorce case without having to air dirty laundry. A spouse who wants out of marriage only has to file papers that say “irreconcilable differences” (they don't even have to allege the stuff about "past efforts at reconciliation." That’s it. Simple words make for a simple way out. The law says that if challenged, the Petitioner must prove the grounds of irreconcilable differences:
"(e) Contested trials shall be . . . with the issue of whether irreconcilable differences have caused the irretrievable breakdown of the marriage . . . . "
Fight "Differences" - Name 'Em! Demand that the filing spouse specifically lists, in writing, all of the "differences" he or she believes to be irreconcilable. This forces the filing spouse to go above and beyond what the law otherwise requires. Think about it: what "difference" between married partners could truly be "irreconcilable?" She doesn't like that you don't do more housework? He doesn't like that you still talk with your old High School flame? Those differences -- if they're differences at all -- are easily reconciled. I challenge you to name one "difference" that truly is irreconcilable. How does your spouse know that any perceived difference really is a difference? Perhaps it was just a misunderstanding. Perhaps no such difference exists. Perhaps you've changed your mind and a difference that once existed is no more.
You can demand the filing spouse specify the "differences" on which the Petition is founded. If you do, your spouse must answer with a specific list within 28 days. If the answer is not timely presented, the case should be dismissed. When I’ve employed this tactic, most of the time the filing spouse doesn’t have any good answers. Almost always they simply let the deadline pass and the case is dismissed. That’s right: almost always.
Don’t Delay: Your demand must be the very first thing you do in response to your spouse’s pleadings. If you instead "answer" the Petition, you'll have waived your right to demand the specifics.
Be careful what you wish for: In In re: Marriage of Scott and Maria George, 1997 D 5526, the husband was a successful and respected banker and businessman. He didn’t want his reputation sullied and besmirched by vague allegations in a divorce filing. He demanded specifics. The wife gave him sixty pages worth! The court file had been sealed to protect the parties. The wife, however, sent copies to his business partners, work colleagues, and clients. The husband – having won custody of the couple’s three children -- eventually sued for libel and won a $9.7 million judgment. The case took ten years.
Fight "Irreconcilable:" Perhaps, too, there is a difference but it is reconcilable. You'll never know unless you ask. Demand that the filing spouse get specific about what makes each "difference" so irreconcilable. Illinois courts have defined "irreconcilable differences" to mean "the existence of marital problems which have so impaired the marriage relationship that the legitimate objects of matrimony have been destroyed." In re: Marriage of Bates, 141 Ill.App.3d 566, 575, 95 Ill.Dec. 922, 924, 490 N.E.2d 1014, 1016 (2d Dist., 1986). There aren't many "marital problems" that are so significant as to "destroy the legitimate objects of matrimony" and even fewer that are "irreconcilable." This is a point that can be won.
The Legitimate Objects of Matrimony: That phrase helps define "irreconcilable differences," so it's important to understand what it means. Some folks may marry to obtain a cheap domestic housekeeper or caregiver, and others may marry for financial gain. Those are not "legitimate objects of matrimony."
As far as the law is concerned, the "legitimate objects of matrimony" lie, so far, in the conceiving and rearing of children by securing the participation of both parents in an ongoing union. If you have minor children, and your spouse is a good parent and gets along with the children and they like him/her and you and your spouse get along in parenting, then an argument can be made that the legitimate objects of matrimony have not been destroyed and, for this reason, the divorce should be denied.
Fight "Irretrievable Breakdown:" This term has been defined by the Illinois courts as meaning where "parties are unable or refuse to cohabit and there are no prospects for reconciliation." In re: Marriage of Bates, 141 Ill.App.3d 566, 575, 95 Ill.Dec. 922, 924, 490 N.E.2d 1014, 1016 (2d Dist., 1986). No prospects? That's a tall order to fill. At the very worst, testimony would show that one side wants out and the other does not. That's a "he said / she said" conflict. The court is permitted to find that the Irretrievable breakdown has occurred where only one of the parties desires to maintain the union
The Six-Month-Escape-Hatch: Seceding spouses are dealt a strong hand: instead of proving "irreconcilable differences," one may simply prove having lived at least six months "separate and apart" from the other spouse. That's it. POOF!! Just like that, "irreconcilable differences" will have been proven and there's no way to fight that part of the two requirements. The law says:
(a-5) If the parties live separate and apart for a continuous period of not less than 6 months immediately preceding the entry of the judgment dissolving the marriage, there is an irrebuttable presumption that the requirement of irreconcilable differences has been met.
Fight "Separate and Apart:" Since you can't fight the calendar, you'll be left fighting about what it means to live "separate and apart." Illinois courts have construed this phrase to mean "separate lives" as opposed to "separate roofs." The Illinois appellate court relied on a case out of Missouri which It found illuminating:
the parties lived "separate and apart" for several years, although they shared the same home, because they ceased marital relations four years before filing the petition for divorce, maintained separate bedrooms and ate meals at different times. The parties also took separate vacations, did their laundry in different washing machines and avoided all conversation or other communication."
In re: Marriage of Kenik, 536 N.E.2d 982, 181 Ill.App.3d 266 (1st Dist., 1989) citing In re: Marriage of Uhls, 549 S.W.2d at 112. See, also, In re: Marriage of Dowd, 214 Ill.App.3d 156, 573 N.E.2d 312 (2d Dist., 1991).
Thus, it might be possible to reside under the same roof and live "separate and apart," or to reside on separate continents and still "live together." It depends on the facts of your case . . . and you can fight this out to save the marriage.
Attack "Efforts at Reconciliation:" Beyond proving that "irreconcilable differences have caused the irretrievable breakdown of the marriage" (or biding time to use the six-month-escape-hatch) the Petitioner must also prove that "efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family." 750 ILCS 5/401(a) (emphasis added).
Fight "Past Efforts at Reconciliation:" Has reconciliation even been attempted? If so and those efforts failed, you're done. Sorry, but your divorce case is going to go forward and you're going to be divorced and, in Illinois, you can't stop it.
If "past efforts at reconciliation" have not been attempted, then the Petitioner may obtain a divorce if and only if he or she proves that future attempts at reconciliation would be "impracticable and not in the best interests of the family.
Fight "Future Attempts Would Be Impracticable:" If reconciliation has not been attempted in the past (or if it worked and you reconciled for a time), how might the court know that future attempts at reconciliation would be "impracticable?" "Impracticable" means "impassable" and "incapable of being performed or accomplished by the means employed or at command" and "impossible to do in an effective way." Synonyms for "impracticable" include impossible, imprudent, infeasible, insuperable, unfeasible, and unwise. How could attempting reconciliation be impossible or imprudent? The only example I can think of is in the case of domestic abuse, where efforts at reconciliation might prove dangerous to the victim-spouse. Unless efforts at reconciliation would be impossible or imprudent, you can fight to force some efforts at reconciliation.
Fight "Best Interests of the Family:" In addition to proving that efforts at reconciliation would be "impracticable," the Petitioner must also prove that efforts at reconciliation would be "not in the best interests of the family." This requirement is the law's recognition that divorce impacts more than just the filing spouse. Illinois Family courts are charged with "strengthen[ing] and preserv[ing] the integrity of marriage and safeguard[ing] family relationships. . . . " 750 ILCS 5/102(2). Humans are fallible and sometimes see the world in extremes -- sometimes the only path seems to be self-destruction and detachment. Divorce is an extreme solution to what very well may be a solvable dilemma. It is hard to imagine a case where attempts at reconciliation would be "not in the best interests of the family."
Court-Ordered Conciliation Conference: If you think reconciliation might work but your spouse refuses to go along with it, you can ask the court to force your spouse to start reconciliation talks. The law says:
(a) If the court concludes that there is a prospect of reconciliation, the court, at the request of either party or on its own motion, may order a conciliation conference. The conciliation conference and counseling shall take place at the established court conciliation service of that judicial district or at any similar service or facility where no court conciliation service has been established.
(b) The facts adduced at any conciliation conference resulting from a referral hereunder, shall not be considered in the adjudication of a pending or subsequent action, nor shall any report resulting from such conference become part of the record of the case unless the parties have stipulated in writing to the contrary.
Using Divorce to Call One's Bluff: It seems perfectly illogical, but my experience demonstrates that filing a divorce case – or being served papers – can often be the catalyst that sparks renewed interest in reconciling the differences that have brought a couple to the precipice of divorce. If your spouse has you in knots threatening divorce or just saying "I don't know if I want to stay married," there exists a possible solution: file a divorce case and put the ball squarely in your spouse's lap. Call your spouse's bluff and force a decision. They'll either get in with both feet or get out. Either way, you'll end the stress and anxiety and you'll be able to get on with living. You'll be able to dismiss your case at any time.
File First: Probably the best thing you can do to manage your situation is to file a divorce case. Doing so gives you several advantages. First, you will force your spouse to either commit to the marriage (you’ll agree to put the divorce case on hold) or to commit to divorce. Whichever way your spouse responds, at least you won’t be stuck in limbo – you’ll know that you can either work together with renewed vigor toward saving your relationship or that your spouse gave up on the marriage long ago and that for you to wait and hope any longer would only be for naught. At least you’ll know where you stand.
If you decide to seek reconciliation, your case can probably be put on hold by the court. For example, the courts of Cook County will hold a case for up to 18 months while a couple seeks reconciliation. Other circuits will allow several 60-day continuances while a couple sorts through the decision about whether to proceed with the divorce.
Even if your case doesn’t reconcile, you don’t have to follow through with your divorce case. Because you filed first, it’s “your” case. You can dismiss it anytime you want (up to the start of trial) simply by informing the court that you have decided against going forward with a divorce (you may have to reimburse any filing fees your spouse has incurred, but these are usually no more than a few hundred dollars).
Finally, even if your marriage doesn’t reconcile, and you end up having to go through a divorce, you will have all of the advantages of filing first.
Start With a Praecipe: Illinois law says you may start your divorce case by filing a "Petition" The law also says, however, that you may start your case by filing a "praecipe" (pronounced "PREH-sih-pee" -- rhymes with "recipe"). A praecipe is, essentially, a memo from you to the court saying you think you'll probably file a divorce Petition within six months. Filing a Praecipe means you don't have to file anything with the court saying that you believe "irreconcilable differences have caused the irretrievable breakdown of the marriage." If you did that, it could be used against you later. FIlilng a praecipe instead of a Petition keeps all your options open.
If you don't follow through and file the Petition within six months, your case will be dismissed -- it dries up and blows away as though it never existed. By filing the praecipe, you'll get a piece of paper from the court stamped with a nice, purple date and time stamp, the case will be assigned to a judge (whose name will then be stamped on the same paper), and you'll be given a case number and assigned a "status date" six months down the road (to see if you've filed your Petition within the six month window or whether the case should be dismissed). Your lawyer will then send a thoughtful letter to your spouse that says something like
By now you should understand that in your 'book of life,' the chapter titled 'marriage' is drawing to its close. The time has come to turn the page and start a new chapter. Your spouse has retained my services to advise and counsel her. Enclosed is a copy of the praecipe I filed with the court. She informs me, however, that she sees the divorce filing only as a last resort and that she hopes to rehabilitate the marriage and reconcile with you. Her first priority is a reconciliation; not a divorce. Please let me know if you share her desire to save the marriage. If so, I will let this case sit undisturbed for the next six months. After that, I can ask the court to put the case on hold for a longer time. If you wish to proceed with a divorce, however, that will rule out reconciliation and I will begin the process of dividing property, allocating debts, and obtaining temporary relief for my client.
The letter, along with the filed praecipe, will make it clear that you've already:
hired a lawyer and are getting good legal advice;
started to protect yourself by filing a case;
paid your filing fee,
been assigned a case number and a judge,
docketed a status date to keep the case moving along, and
are taking further steps to protect yourself.
To your spouse, it looks like you mean business. The ball is in his / her court. It puts the onus on your spouse to decide whether to put things on hold and seek reconciliation . . . or go forward with a divorce. Either way, you'll be better off -- you'll have checkmated your spouse into getting on one side of the fence or the other -- get in with both feet or get out with both feet . . . but no more mind games.
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