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I was charge of mental cruelty and irreconcilable difference on my divorce paper. I denied all on my response.

Buffalo Grove, IL |

How can her lawyer draft the petition when my wife and I have not had any fight and I never ever laid my hands on her in 12 years of marriage. I am contesting the divorce on all grounds. will the court require them to prove the accusation? We still live together in the same house and never separated. Thank you.

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Attorney answers 5

Posted

Allegations of mental cruelty and irreconcilable differences is the norm in Illinois. If your wife wants a divorce, she will get it. Yes, you can contest the grounds but if your wife is determined to get a divorce, there really are irreconcilable difference. However, if you do not agree, she will testify as to mental cruelty, There is not requirement that you ever touched her or verbally fought with her. Hire a lawyer. You need one. If there is a chance to save your marriage, your lawyer will advise you accordingly.

Andrea Medlock Harvey

Andrea Medlock Harvey

Posted

I agree with this in every sense.

Posted

Agreed. Grounds are peanuts. Losing your shirt b/c of alimony (called maintenance) or your retirement are bigger deals. Talk to a family law attorney in your area for specific guidance.

Posted

I completely agree with my colleagues and would add that "separate" does not necessarily mean living at different addresses. You can still live under the same roof and be considered living separately. You would be well-served to hire an attorney who can guide you through this difficult time.

***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. LEGAL DISCLAIMER I am licensed to practice law in the State of Illinois and have an office in Kane County. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you this answer helpful.

Gary L. Schlesinger

Gary L. Schlesinger

Posted

you can be separated in the same house for irrec. differences. but not for legal separation. is not the law wonderful?

Judith Anne Schening

Judith Anne Schening

Posted

Yes . . . I found that to be an interesting twist as well!

Posted

Although I've clicked the "I Agree" button on Judy's, David's, and Judith's answers; I respectfully disagree. Judy, David, and Judith are correct for the most part (that's why I clicked the buttons), I believe, because for the most part, Respondents don't challenge divorce grounds, anymore.

Let me also say that the Asker should work with an attorney.

Back in the day, before the significant gains of women's rights, Respondent's were more likely to fight grounds; and when they fought, they often won. Those cases are still the law of the land in Illinois and, when a Respondent fights to thwart a divorce, the Respondent has a pretty fair chance of prevailing. It's not reported much, anymore, simply because it's not tried very often.

As for "mental cruelty," the burden of proof is really quite high. Below (and here) is a link to a blog I'm trying to start and the "mental cruelty" issue is one of the topics I've managed to partly address, so far: http://illinoisfamilylaw.wordpress.com/category/grounds/mental-cruelty/. Check it out . . . I think it's fun reading.

As for "irreconcilable differences," more needs to be done than simply waiting out the two year separation period (or invoking the "we've-been-living-separate-and-apart-even-though-we-still-live-together argument). The Petitioner must also prove that they've gone through reasonable counseling in the past and also has to prove that there are certain "irreconcilable differences" existing between the parties. Having been married for nearly twenty years (combined), I have to say that I can think of only ONE difference that could exist between spouses that is truly irreconcilable -- everything else (EVERYTHING) can be reconciled.

I've had this debate, before, on this forum. Suffice it to say that we fight a few cases on grounds each year -- maybe two or three. We have two such cases going on, right now. When we do challenge grounds, the Petitioner almost always drops the case, outright. If it has to go to a hearing, the Petitioner still has an uphill fight and no guarantee of success.

Finally, a word of warning to the Asker: all of this might change in 2014. Legislation is being considered that would remove all grounds from Illinois and leave us with only a single method by which to obtain a divorce: irreconcilable differences." If that happens, the burden of proof will be lowered and THEN what the other answers say will be truly true: if a spouse wants a divorce he/she'll be able to get it. So, you can probably delay a divorce for the time being, but if she wants to keep trying . . . eventually she'll prevail, even if it takes a change in the law to get there.

Questions? Call -- 312-987-9999 -- no charge, no obligation free consultation.

Gary L. Schlesinger

Gary L. Schlesinger

Posted

while wes is absolutely legally correct in his very fine response, it is hard to go to trial these days and defeat grounds unless you can prove that both parties are guilty of mental cruelty. if so, neither gets a divorce. did that three years ago. now the husb. has refiled on irrec diff. he will win,

Wes Cowell

Wes Cowell

Posted

To prevail on grounds of mental cruelty, the Petitioner must prove that the Respondent's mentally cruel behavior was caused without provocation by the Petitioner. There was a case -- Ducey -- where the wife won the divorce on grounds of mental cruelty. Husband appealed and argued that she failed to prove that his bad behavior was without cause or provocation. He never challenged her on the point at trial, and he didn't object or argue at trial that she failed to meet her burden of proof. Despite his shortcomings at trial, we won on appeal due to the wife's failure to establish this element. I submit that it's harder than it seems to win a grounds trial -- at least on grounds of mental cruelty. Like most things in law, it seems a lot easier to play defense and thwart the other side.

Posted

This comes from Illinois' particular statute for a no fault divorce. The next easiest grounds for a divorce are mental cruelty. It is not hard to believe in 12 years of marriage that you and she had some disagreements and it would be just as easy for an attorney representing you to plead mental cruelty. The testimony is not going to be detailed and trashing you if your wife has a competent attorney. The Judge does not need or want to hear her rant and rave about you when she needs to say very little to prove grounds. The issues you need to look at are what are they trying to take from you as to income and assets. Also, you don't mention children. If you have children together; what is she saying custody and visitation should be? These questions need answers.

This is a general answer and does not address the specifics of your individual case. To give the specific answer you need our firm needs you to come in for a consultation.

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