Illinois law requires that at least one spouse be a resident of the state of Illinois for the court to issue a divorce decree. A common question and misunderstanding is how long before filing do you have to live in Illinois? The answer is–and a lot of people get this wrong–is that you do not have to wait for any period of time after moving to Illinois to file. You can file for divorce seconds after establishing your residency here.
“I heard that you have to wait 90 days after moving to Illinois to file divorce here, right?” Wrong.
A common misunderstanding about filing for divorce in Illinois is the 90 day rule. Section 401 of the Illinois Marriage and Dissolution of Marriage Act provides that “if at the time the action was commenced one of the spouses was a resident of this State . . . and the residence . . . had been maintained for 90 days next preceding the commencement of the action or the making of the finding.” You would read this to mean that you have to wait 90 days after you move to Illinois to file, right? Wrong, read it again.
Section 401 requires (1) residency at the time the action was commenced by one or both spouses, and (2) either residency for 90 days preceding the filing of the divorce case or residency for 90 days preceding the finding of residency (which usually happens when the court enters judgment). Admittedly, this isn’t the most exciting topic, but if you are interested in why this interpretation is correct, read In re Marriage of Weiss, 409 N.E.2d 329 (Ill. 1st Dist. 1980), which states that the Illinois divorce laws allow “One who has just entered [Illinois to] commence the proceeding immediately, thus enabling the court to enter such temporary orders as are necessary to protect the rights of the parties.”