Many people in Illinois are told they must live in the state for 90 days before they can file for divorce. That is wrong.

 

It is one of the most common misunderstandings in Illinois family law, and it is repeated far too often, even by lawyers who should know better.

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You see it online, and if you ask a lawyer, most will tell you,“You must live in Illinois for 90 days before you can file for divorce.”

 

That statement is repeated everywhere. It appears on websites. It gets passed around in online forums. Even many experienced lawyers repeat it. But the problem is simple: it's wrong.

 

The truth is this: there is no 90-day waiting period to file for divorce in Illinois.

 

The 90-day requirement applies to when the court can enter a final judgment of dissolution, not to when the case can be filed. That distinction matters. A lot.

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Section 401(a) of the Illinois Marriage and Dissolution of Marriage Act provides that a judgment of dissolution shall be entered if one of the parties has resided in Illinois for 90 days preceding the commencement of the action or the making of the finding. 750 ILCS 5/401(a). Those last words matter: or the making of the finding. In plain English, that means a divorce case may be filed before either party has lived in Illinois for 90 days, so long as the residency requirement is satisfied before the divorce is finalized.

 

Illinois courts have already made this clear. In re Marriage of Weiss, the court held that the 90-day requirement does not have to be met before filing. It only must be met before entry of judgment. (for lawyers, here is the citation: 87 Ill. App. 3d 643, 649 (1st Dist. 1980) (court noting,“[m]oreover, the apparent purpose of a 90 day requirement prior to the findings rather than prior to commencement of the action is to allow a newly arrived litigant to obtain temporary relief even though the 90 day durational requirement has not yet vested”, citing Auerbach, An Introduction to the New Illinois Marriage and Dissolution of Marriage Act, 66 Ill.L.J. 132, 133 (1977); 1971 Midyear Report and Recommendation of the Family Law Section to the ABA House of Delegates on the Uniform Marriage and Divorce Act, 5 Fam.L.J. 133, 165-166 (1971)).

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This is not some technical loophole. It is not a trick. It is the law. And the reason behind the law is important. Illinois recognized that newly arrived spouses may need relief immediately. They may need to seek temporary parenting orders, temporary support, possession of a residence, restraints on dissipation, or other emergency protections before 90 days have passed.

 

The court in Weiss case explained that the statute was intentionally written this way so that a newly arrived litigant could obtain temporary relief even though the 90-day durational requirement had not yet vested for purposes of a final judgment. That means Illinois law was designed to allow people to act now, not sit and wait while their situation gets worse.

 

The old rule still confuses most lawyers. Part of the confusion comes from older thinking and outdated habits. Many lawyers still speak as though Illinois requires 90 days of residency before a divorce case can even be started. That may be how some people learned it decades ago, or how they casually explain it, but it is not what the statute says and it is not what Illinois case law holds.

 

This is exactly the kind of issue that separates lawyers who actually study the statute and the cases from lawyers who simply repeat what they have heard.  Click Here if you want to know more about how to tell if a lawyer stays on top of the most current legal trends on divorce.

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At my office, I spend a great deal of time identifying these kinds of hidden truths in family law. They are not really “secrets.” They are simply rules that many lawyers do not explain, do not notice, or do not fully understand.

 

So, can you file for a divorce in Illinois immediately after moving here? The answer is: Yes! 

 

If you or your spouse have recently come to Illinois, you are able to file right away and begin asking the court for relief. The key point is that the 90-day residency requirement must be satisfied before the court enters the final divorce judgment, not before the petition is filed.

 

If you have questions about filing for divorce in Illinois, especially where residency, timing, or jurisdiction may be involved, especially if you're worried about your spouse filing in a different State, call for a free consultation.

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Contact Nordini Law Office to discuss your Illinois divorce case and how to file you case immediately without needing to wait.