How Does Adultery Affect Divorce in Illinois?

• Can adultery play a role in Illinois divorce?
• Is adultery a crime in Illinois?
• Can an affair affect alimony, child custody, or property division in Illinois?
• Can I claim a dissipation of assets if my spouse had an affair?
• Should I file for divorce if my spouse committed adultery?
• FAQ

Adultery is illegal in Illinois, but it isn’t commonly prosecuted. Regardless, it is unlikely to affect a divorce outcome. Legally speaking, the real risk lies in using marital assets on people outside of one’s marriage. Depending on the circumstances, this could result in certain financial penalties if one’s spouse claims a dissipation of assets.

Can adultery play a role in an Illinois divorce?

An act of adultery is considered to be any voluntary sexual intercourse between a married person and someone who is not their spouse. While the term cheating covers other types of sexual and romantic contact beyond intercourse, adultery specifically involves intercourse.

Some states allow adultery to significantly impact the outcome of a divorce case, but Illinois isn’t one of them. Illinois is considered a no-fault divorce state. This means divorcing in the state doesn’t generally require proof that either party caused the divorce. Even if one party is the reason for the divorce, there usually isn’t any change regarding how assets will be split because of it – although there is a notable exception, which we discuss later.

Watch: If Your Ex Cheated, Can You Get More Money In Divorce?

Is adultery a crime in Illinois?

Technically, adultery is a Class A misdemeanor in Illinois. However, a person is exempt from prosecution if the only evidence available was given by the person who committed adultery in compliance with certain other legal requirements. Furthermore, it can be a difficult crime for a plaintiff to prove in court.

It’s also worth noting that adultery has a specific definition in Illinois law. It is illegal to knowingly have intercourse with someone who is not your spouse if the behavior is “open and notorious.” It is also illegal to similarly have intercourse with someone you know to be married even if you are unmarried. 

Can an affair affect alimony in Illinois?

In some states, an affair could potentially affect how alimony or spousal support is determined. However, Illinois is not one of these states. In Illinois, a judge will consider the following factors when determining alimony:

• Duration of the marriage
• Income and property of both parties
• Contributions and services by both parties to the education, training, and career of the other party
• Needs of both parties
• Realistic earning potential of both parties
• Time necessary for the party seeking maintenance to acquire appropriate education, training, and employment
• Effect of any parental responsibility arrangements on a party’s ability to seek or maintain employment
• Age, health, income, employability, and similar factors about both parties
• Any valid agreements made by the parties
• Any other factors the court finds to be “just and equitable”

Can adultery affect child custody or property division in Illinois?

While a person committing adultery may be viewed in a more negative light by a judge in terms of their ability to serve as a good role model for a child, this is unlikely to so severely affect the judge’s perception that it meaningfully impacts child custody arrangements. 

It’s even less likely to affect property division. That said, there are some legal options available to people whose spouses have given marital property to or spent marital funds on a person who was not part of the marriage.

Can I claim a dissipation of assets if my spouse had an affair?

If you believe your spouse has been wasting marital assets on something unrelated to your marriage, including an affair partner, you may be able to claim a dissipation of assets. This is when a spouse uses marital property for their sole benefit for something unrelated to the marriage and during which time the marriage is “undergoing an irretrievable breakdown.” 

It’s also been shown in court that this use of assets doesn’t necessarily need to be for one’s personal financial benefit. Destroying assets or giving them away can also qualify.

If you can prove your claims in court, the court could take this kind of wasting of assets into account during the divorce process. While the specifics can be complicated, an individual who used assets in this way is often ordered to reimburse the other party for 50% of the value of the assets and/or debt allocation that resulted from their improper use of the marital assets. In some cases, the reimbursement may be less.

Should I file for divorce if my spouse committed adultery?

Whether to file for divorce if your spouse commits adultery is a complex matter to consider with many personal variables. Finding out your spouse has committed adultery can be emotionally devastating and destroy the trust you once had in them. 

At the same time, relationships are complex. Your spouse hurting you in that way doesn’t necessarily mean that they cannot change in such a way that your relationship might heal and redevelop into something healthy. Whether this type of change is possible, and if you’d even care if that change occurred, depends on the specifics of your relationship with your spouse. 

Divorce is a big decision. It can be financially complicated and often requires a person to dramatically rework how they live their life to adapt to the change. It gets even more complicated if you have children, as that means you must determine how parenting time and legal custody will be arranged. 

Some couples may also have assets that cannot be easily split. Determining how to split these assets can sometimes only further add to the time and money a divorce case takes to resolve.

Suggested: Should Infidelity in a Marriage Signal Divorce?

Alternatives to divorce 

Couples therapy

If you believe your spouse wants to change for the better and is truly sorry for their adulterous actions, therapy may help to heal the damage. While nothing is guaranteed, a professional mental health expert can help you both process how you feel and what happened. This could potentially allow you to find a sustainable path forward where you can remain married. 

Read: Can Marriage Counseling Save Our Marriage?

Legal separation

Illinois law also allows for legal separation. In this scenario, a couple remains legally married, but they no longer live together. 

This type of separation doesn’t have to be permanent if the couple decides otherwise. Similarly, it doesn’t prevent the couple from getting a divorce at a later date. 

There are a few reasons why a couple may choose to separate rather than divorce, but a core reason is that they believe the marriage might be repaired. If you have a desire to remarry, divorce is necessary.  

Frequently asked questions about adultery and divorce in Illinois

Can you press charges for adultery in Illinois?

While adultery is technically illegal in Illinois, pressing charges is unlikely to result in much. Whereas many states have outright struck adultery laws from their books, Illinois continues to have them, but anecdotally, prosecutors tend to be very uninterested in pursuing such cases. 

Can you go to jail for adultery in Illinois?

Adultery in Illinois is technically a Class A misdemeanor, which can carry fairly severe penalties, including imprisonment of less than one year. However, it is extremely unlikely a person would actually face such a penalty. These cases appear to be rarely, if ever, prosecuted in modern times. 

Does cheating affect a divorce settlement in Illinois?

Cheating is unlikely to affect an Illinois divorce settlement, although spending marital assets, especially in secret, on someone other than your spouse could potentially have financial consequences if your spouse claims a dissipation of assets. 

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