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How Does Infidelity Affect My Illinois Divorce?

Posted on in Divorce

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If your marriage is coming to an end because your spouse cheated on you, you may wonder how this could affect the divorce process. Illinois is a “pure no-fault” state, which means that there are no fault-based grounds for legally terminating your matrimonial union. If you and your spouse are getting divorced in Illinois, you will simply list “irreconcilable differences” as to the reason that you are seeking a divorce. However, marital infidelity can still affect your divorce proceedings in several important ways.

Assets Wasted During an Affair Can Constitute Dissipation

Illinois law prohibits courts from considering cheating or other types of marital misconduct when making property division, child support, or spousal maintenance decisions. However, there are several exceptions to this rule. According to the Illinois Supreme Court, “dissipation” occurs when a spouse uses marital funds or property “for a purpose unrelated to the marriage” while the marriage is “undergoing an irretrievable breakdown." Dissipated assets can include money spent on gifts or vacations for a secret lover, property which was sold in order to fund the affair, or other assets which were used to benefit the paramour. If you and your legal counsel can prove that your spouse dissipated assets, you may receive a proportionately larger share of the marital property in the divorce.

Adultery Can Impact Child Custody

Typically, marital infidelity does not impact child custody or visitation, which are called “allocation of parental responsibilities” and “parenting time” in Illinois. However, there are important exceptions to this generality. If your spouse’s girlfriend or boyfriend presents a credible danger or risk to your children, the courts may take this into account when allocating parental responsibilities. For example, if your spouse’s new partner is a registered sex offender, the court may limit your spouse’s parenting time or require your spouse to have supervised visits. The court may take similar precautions if your spouse’s new partner has been accused of domestic violence or is the subject of an order of protection.

A Prenuptial Agreement Can Address Infidelity

If you and your spouse have a premarital or prenuptial agreement that specifically addresses infidelity, this could affect your divorce. More and more individuals are choosing to have infidelity clauses that prescribe certain financial consequences for a spouse who cheats. It is important to note that not all prenuptial agreements are upheld by the Illinois courts, however. If your prenuptial agreement does not meet the criteria required by Illinois law, or if it contains unconscionable provisions, the court may set aside the document entirely. If you do have a valid prenuptial agreement that addresses infidelity, Illinois courts will likely uphold the provisions contained within it.

Contact a Burr Ridge Divorce Lawyer

If you are getting divorced after your spouse had an affair, you know just how distressing marital infidelity can be. For sound legal advice from an experienced Cook County child support attorney, contact the law firm of Botti Marinaccio, LTD. Our highly qualified divorce lawyers have the knowledge and experience necessary to successfully handle even the most complex cases. We will aggressively advocate on your behalf to make sure you receive your fair share of the marital property and assets. To schedule a confidential consultation, call our office today at 630-575-8585.



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Botti Marinaccio, LTD.


2015 Spring Road, Oak Brook, IL 60523

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