ILLINOIS V. FLORIDA: WHERE TO FILE FOR DIVORCE

Upwards of a hundred thousand people have a home in Illinois and a home in Florida. Hundreds of thousands more could easily move from Illinois to Florida or vice versa. If you are in Florida or Illinois and are contemplating divorce, you need to be apprised of the differences between the two states’ laws in relation to divorce. Knowing how outcomes differ in Illinois vs. Florida divorce can be the first and greatest strategy in a pending divorce that could possibly occur in either state, and may be the most important conversation to have with a Florida divorce attorney.

I am a divorce lawyer with 19 years of experience practicing family law in Illinois and 8 years in Florida. My first questions to potential clients are always to clarify the best jurisdiction for their goals and concerns.

Family law is not uniform from state to state, and that variance can turn identical facts into markedly different results. Differences in residency rules determine how quickly a client can obtain a final decree.

Property divisions pursuant to divorce vary between states: Florida emphasizes a more equal distribution while Illinois emphasizes equitable distribution with broader judicial discretion. These differences can change the dollar outcome of a final divorce by tens or hundreds of thousands of dollars for either divorcing party.

Alimony doctrines diverge between the two states in the remedies they recognize, from short-term bridge payments to long-term or permanent maintenance. A party’s ability to secure ongoing support depends on the state’s statutory scheme, the prevailing case law and the judicial disposition toward long-term spousal relief.

The two states share similar goals in granting custody based on the child’s best interests, but have vastly different presumptions about that best interest.

Both states have byzantine child support systems with specific rules that can and will be gamed.    

Choosing the state in which to file your petition for dissolution is not a clerical choice; it is a strategic decision that alters timelines, adjusts bargaining leverage, and can produce materially different financial and custody outcomes from the same set of facts.

Finally, even if a party files in Illinois or Florida, the other party has recourse to dismiss the case and file in a more appropriate jurisdiction.

In this article, when relevant, I will do a “specific family analysis” as to how each jurisdictional issue should be considered by a different family: 1) a high-earning individual, married to a homemaker who share children, 2) Two high-earning parents, and 3) a wealthy older couple.

JURISDICTION: CAN YOU EVEN FILE FOR DIVORCE IN ILLINOIS OR FLORIDA?

Filing in the “wrong” state wastes time and money; filing in the “right” state can lock in advantages long before the first contested hearing. Two separate jurisdictional questions are relevant when deciding which state to file in: (1) which state can legally dissolve the marriage and distribute property/support, and (2) which state can decide custody.

Illinois’ statutory residency rule for dissolution is relatively permissive: “The court shall enter a judgment of dissolution of marriage when 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:
    Irreconcilable differences have caused the irretrievable breakdown of the marriage and the court determines that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family.” 750 ILCS 401(a)(emphasis mine)

This wording of the Illinois statute leads people to believe that you must have lived in Illinois for 90 days in advance of filing the petition for dissolution of marriage…but that is only the first clause of the statute. An Illinois court can grant a divorce if either party was an Illinois resident 90 days before the final judgment was entered. So, in theory, you could file in Illinois without living there, move to Illinois, wait 90 days and finalize your divorce.

Best practice is to live in Illinois for 90 days in advance of filing the petition otherwise a motion to dismiss for lack of subject matter jurisdiction MAY (but not necessarily so) be granted. In re Marriage of Schoen 2026 IL App (1st) 251193-U

This short residency period allows relatively quick access to Illinois courts for people newly returned or recently relocated. The practical upshot is speed and flexibility: a spouse who moves or returns to Illinois can often file sooner than a spouse in another state.

Florida’s residency rule is harder to meet. “To obtain a dissolution of marriage, one of the parties to the marriage must reside 6 months in the state before the filing of the petition. §61.021 Fla. Stat.

Practically, Florida’s residency rule forces planning. A spouse who prefers Florida divorce law must wait in Florida to qualify to file.

Beyond residency, both states require due process to satisfying personal jurisdiction over the respondent. In Illinois, a petitioner can request permission to serve someone via email, text or social media (which virtually guarantees proper service). Ill. Sup. Ct. R. 102(f). Florida requires personal service which can be problematic if the respondent is actively avoiding service.

Finally, once jurisdiction is achieved, resolution of the case is not guaranteed within a certain time. In Florida, in theory, seniors can skip to the front of the divorce trial line.

“Civil actions involving elderly parties; speedy trial.—In a civil action in which a person over the age of 65 is a party, such party may move the court to advance the trial on the docket. The presiding judge, after consideration of the age and health of the party, may advance the trial on the docket. The motion may be filed and served with the initial complaint or at any time thereafter.”. §  415.1115 Fla. Stat.

I, however, have never seen someone use this Florida statute to accelerate their divorce case.

In my experience, Florida resolves divorce cases faster than Illinois does as a rule, anyways. Speed of a divorce case largely depends on the county in both Illinois and Florida.

Specific Family Analysis

Scenario A- High-Earning Spouse & Homemaker

A homemaker who needs immediate temporary relief: pendente lite, emergency child-care arrangements, or an initial custody order most often benefits from the quicker pathway Illinois offers. The ninety-day rule can let a homemaker file promptly and ask the court for interim relief while longer-term issues are handled. If the homemaker’s primary goal is to secure income and parenting arrangements without waiting six months, Illinois’ accessibility is a clear advantage. Florida’s six-month rule is a nontrivial delay if the homemaker lacks independent cash flow or immediate legal protection.

Scenario B- Two High-Earning Parents

When both spouses earn well and share expenses, the urgency that favors the homemaker is usually absent. For dual high earners, the six-month waiting period in Florida is less burdensome: both spouses can preserve liquidity during that period and plan the filing to obtain the law that best aligns with their strategy. Two high-earning parents can carefully consider which state’s rules will affect the fundamentals of their underlying case and file when and where is most appropriate.

Scenario C – Wealthy Semi-Retired Spouses with Grown Children.

Wealthy people rarely need temporary relief immediately from the other spouse unless the spouse controls ALL the money. The spouse that doesn’t control the money can request temporary relief in Illinois sooner by establishing residency there quickly. Every Florida county has a rule that a divorce triggers the standing order which is automatically signed and filed with the court by the circuit court judge immediately upon the case being opened. The standing order provides that the parties must maintain family expenses, not cut off credit cards, etc. Illinois has no automatic stay, meaning that the moneyed spouse can withhold resources until the court otherwise orders them to provide support. If the moneyed spouse is currently paying their other spouse’s bills, Florida’s automatic stay rule will ensure that they continue to do so. If the moneyed spouse has stopped paying expenses for a long time, Illinois may allow relief faster. Additionally, if either party is old enough, final relief can be granted faster in Florida.

Divorce Attorney in Florida — Law Office of Russell Knight

DIVISION OF ASSETS IN FLORIDA VS. ILLINOIS DIVORCE

Every divorce requires a final accounting of both parties’ assets. That accounting shall appropriately divide all the assets of both parties. Every Marital Settlement Agreement should achieve a complete separation of the finances and dictate the physical possession of the parties’ possessions.

Florida and Illinois have remarkably different statutory schemes for dividing assets in a divorce.

Marital vs Non-Marital Property in Illinois and Florida

Both Florida and Illinois divorce courts can only divide assets which are deemed to be “marital”. Marital assets are those assets which were acquired during the marriage.

In Florida, assets stop being “marital” and, thus, divisible once the Petition for Dissolution of Marriage is filed.

“The cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is…the date of the filing of a petition for dissolution of marriage.” § 61.075(1)Fla. Stat.In Illinois, divorce courts consider all assets acquired before the divorce is finalized as “marital” and, thus, divisible.

“For purposes of distribution of property, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed marital property.” 750 ILCS 5/503(b)

Illinois courts do not care about separation dates. “To hold that the parties did not accrue marital propertyafter the date of physical separation would be to recognize “common law divorce,” and the law and public policy do not support such a result.” In re Marriage of Morris, 640 NE 2d 344 – Ill: Appellate Court, 2nd Dist. 1994

Illinois courts will consider “whether the contribution is after the commencement of a proceeding for dissolution of marriage or declaration of invalidity of marriage” 750 ILCS 5/503(d)(1)(iii)

In my 19 years of practicing family law in Illinois, I have found that Illinois courts rarely consider whether an asset was acquired before or after the date of the initial divorce filing.

A spouse who is still actively acquiring assets: receiving and saving a salary, expecting a bonus will want to file in Florida where those future earnings will be deemed untouchable by a divorce court.

Conversely, a spouse who is married to someone who is actively acquiring assets will want to file in Illinois. Every day that passes is more assets that must be divided by an Illinois divorce court. This creates incredible leverage in negotiations as “walking away from the negotiating table” effectively means dividing more assets.

Equal Distribution In Florida vs. Equitable Distribution In Illinois

In Florida, the presumption is that “[T]he court must begin with the premise that the distribution should be equal § 61.075(1) Fla. Stat.

Florida allows courts to make an unequal division of assets based on a variety of factors but that will only occur if the party proposing the unequal division of assets proves evidentiarily that an unequal distribution would do “justice and equity to the parties.” In my 7 years of practicing family law in Florida, I have rarely seen this happen and only in the most extreme cases of dissipation.

Illinois has NO bias towards equal distribution. Instead, Illinois law only insists that Illinois divorce courts “shall divide the marital property without regard to marital misconduct in just proportions.” 750 ILCS 5/503(d)

“Just proportions does not mean strict equality but only an equitable division.” In re Marriage of Albrecht, 266 Ill. App. 3d 399, 402 (Ill. App. Ct. 1994)

A “court has broad discretion to distribute marital assets, and mathematical equality is not required.” In re Marriage of Hubbs, 843 NE 2d 478 – Ill: Appellate Court, 5th Dist. 2006

Illinois divorce courts when dividing marital assets “the relevant economic circumstances of each spouse when the division of property is to become effective [and] the reasonable opportunity of each spouse for future acquisition of capital assets and income” 750 ILCS 5/503(d)(5),(11)A spouse who does not have a “sob story” about why they need more assets and simply wants to get divorced quickly as a matter of accounting will want to file for divorce in Florida.

A spouse who has little income or future prospects to earn income compared to their spouse can expect to receive 55% or 60% of the total marital estate to make up for that disparity in income. Therefore, a spouse who earns relatively less should file for divorce in Illinois to receive relatively more of the marital estate.

Mortgage Payments In a Florida vs. Illinois Divorce

If real estate is purchased prior to the marriage and is NOT held jointly that real estate is non-marital property and, thus, indivisible by a divorce court.

Most real estate is purchased with a mortgage. When the mortgage is paid with money earned AFTER the parties marry, in Florida the value of that mortgage paydown becomes marital.

“The paydown of principal of a note and mortgage secured by nonmarital real property and a portion of any passive appreciation in the property, if the note and mortgage secured by the property are paid down from marital funds during the marriage.” § 61.075(6)(a)1.c Fla. Stat.

Furthermore, any appreciation of the non-marital property whose mortgage is being paid by marital money shall become marital in proportion to the amount of debt the marital money paid.

“The portion of passive appreciation in the property characterized as marital and subject to equitable distribution is determined by multiplying a coverture fraction by the passive appreciation in the property during the marriage.” § 61.075(6)(a)1.c Fla. Stat.

This is in stark contrast to the rule in Illinois regarding mortgages and homes that were purchased before the marriage. Illinois gives zero credit to mortgage payments made against non-marital real estate under the theory that the party who didn’t own the house was effectively paying rent.

“[A] marital estate is not entitled to reimbursement for mortgage payments toward nonmarital property when the marital estate has already been compensated for its contributions by use of the property during marriage.” In re Marriage of Crook, 813 NE 2d 198 – Ill: Supreme Court 2004

“[T]he parties benefited from living in the house for a substantial period of time, [so] the court could reasonably have found that the marital estate had already been compensated for its contributions.” In re Marriage of Snow, 660 NE 2d 1347 – Ill: Appellate Court, 4th Dist. 1996

A party that owns a house or other property purchased before the marriage will want to file for divorce in Illinois where that property is effectively untouchable by a divorce court.

Conversely, the spouse of person who owns properties purchased before marriage can expect to get a portion of the debt that has been paid off and the subsequent appreciation on those properties if they file for divorce in Florida.

Commingling Assets in a Florida vs. Illinois Divorce

It’s not uncommon for a party to bring assets into a marriage that are presumptively non-marital and, thus, non-divisible. After all, married people love and trust each other while they try to build a life together.

When non-marital assets are mixed with marital assets, both Illinois and Florida agree that they lose their non-marital character and become marital.

Once an asset is marital it is presumptively divisible in an equal 50/50 proportion in Florida.

In Illinois, commingled marital assets can be divided in a “just proportion” to effectively carve out the non-marital portion and deliver it back to the original owner.

In Florida, putting real estate or bank accounts in both people’s names presumptively makes the property marital.

“All personal property titled jointly by the parties as tenants by the entireties, whether acquired before or during the marriage, is presumed to be a marital asset. In the event a party makes a claim to the contrary, the burden of proof is on the party asserting the claim that the subject property, or some portion thereof, is nonmarital.” § 61.075(6)(a)3., Fla. Stat.

In Florida, only portions of a jointly held property that can be traced to exclusively non-marital contributions can be deemed non-divisible. Tracing in Florida is extremely fact intensive.

For example, a non-marital stock sale that paid off non-marital mortgage would not render that paydown amount marital. Steiner v. Steiner, 746 So. 2d 1149 – Fla: Dist. Court of Appeals, 2nd Dist. 1999

Or, an account that was opened during the marriage but completely funded with explicitly non-marital funds that can be proven can retain a non-marital character. Street v. Street, 303 So. 3d 1253 – Fla: Dist. Court of Appeals, 2nd Dist. 2020

But if it is non-marital assets deposited into a joint account, no amount of tracing can overcome the presumption that the commingling was a gift to the marriage and is, therefore, marital.  “When one spouse deposits funds into a joint account where they are commingled with other funds so as to become untraceable, a presumption is created that the spouse made a gift to the other spouse of an undivided one-half interest in the funds.” Sorgen v. Sorgen, 162 So. 3d 45 – Fla: Dist. Court of Appeals, 4th Dist. 2014

Illinois is much more open to tracing the non-marital portion of commingled funds and awarding that portion back to the original owner.

An Illinois divorce court “shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:

(1) each party’s contribution to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property” 750 ILCS 5/503(d)(1)

In Illinois, the reimbursement to the non-marital estate is mandatory.“When one estate [the non-marital estate] of property makes a contribution to another estate of property [the marital estate],…the contributing estate shall be reimbursed from the estate receiving the contribution notwithstanding any transmutation” 750 ILCS 5/503(c)(2)

The only exit from reimbursement to the non-marital estate in an Illinois divorce is to claim that the transmutation of the property from non-marital character to a marital character was a gift. “Transmutation is based on the presumption that the owner of the nonmarital property intended to make a gift of it to the marital estate.” In re Marriage of Vondra, 2016 IL App (1st) 150793

Dissipation of Assets In Illinois Vs. Florida

Accumulation of assets in a marriage is not the only consideration in a divorce. The waste of marital assets is also a factor to be weighed when determining the best jurisdiction for a divorce.

A Florida divorce court can consider “an unequal distribution based on…The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.” § 61.075(1)(i) Fla. Stat.

“Waste, depletion, or destruction of marital assets” is self-explanatory. The more common instance of “dissipation” is defined in Florida as “where one spouse uses marital funds for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.” Gentile v. Gentile, 565 So. 2d 820 – Fla: Dist. Court of Appeals, 4th Dist. 1990

The spouse alleging this dissipation must prove the dissipation occurred in a Florida divorce. You cannot simply say “the money is gone. Where is it?”. “[T]o include a dissipated asset in the equitable distribution scheme, there must be evidence of the spending spouse’s intentional dissipation or destruction of the asset, and the trial court must make a specific finding that the dissipation resulted from intentional misconduct.” Roth v. Roth, 973 So. 2d 580 – Fla: Dist. Court of Appeals, 2nd Dist. 2008

Not surprisingly, you are allowed to be a moron in Florida. Intentional misconduct to prove Dissipation in Florida does not “include imprudent or unwise investment decisions made for the benefit of the family.” Squindo v. Osuna-Squindo, 943 So. 2d 232 – Fla: Dist. Court of Appeals, 3rd Dist. 2006.

Florida’s narrow rules about dissipation of assets in a divorce stand in stark contrast to Illinois’ rules.

Illinois’ dissipation rule has the same goal, to adjust the distribution of assets to accommodate for any dissipation.

An Illinois divorce court “shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:

…

the dissipation by each party of the marital property” 750 ILCS 5/503(d)(2)

Dissipation is similarly defined in Illinois. “Dissipation is defined as the use of marital property for one spouse’s sole benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.” In re Marriage of Tietz, 605 NE 2d 670 – Ill: Appellate Court, 4th Dist. 1992

Illinois case law, however, has expanded dissipation into almost anything: the purchase of a boat. In re Marriage of Hubbs, 363 Ill. App. 3d 696, 702 (Ill. App. Ct. 2006), being lazy at work, In re Marriage of Thomas, 608 NE 2d 585 – Ill: Appellate Court, 3rd Dist. 1993, being a bad investor, In re Marriage of Schneeweis, 55 NE 3d 1280 – Ill: Appellate Court, 2nd Dist. 2016

The real difference between Illinois and Florida dissipation arguments is that the burden of proof is reversed. Illinois requires that the accuser provide an advance Notice of Dissipation outlining the missing assets and make a prima facie case (just saying “the money is gone” is sufficient.

“Once [a prima facie] showing has been made, however, the burden shifts to the party charged with dissipation to show with clear and specific evidence how the funds were spent.” In re Marriage of Hamilton, 128 NE 3d 1237 – Ill: Appellate Court, 5th Dist. 2019

The alleged Illinois dissipator must prove that they did not, in fact, use marital assets for a non-marital purpose…and they will need more than just their word.

“Vague and general testimony that marital assets were used for marital expenses is inadequate to meet the spouse’s burden to show by clear and specific evidence how funds were spent.” In re Marriage of Brown, 2015 IL App (5th) 140062, ¶ 69

If the alleged Illinois dissipator can’t show receipts, “[t]he circuit court is required to find dissipation where the charged party fails to meet his burden of showing that marital funds were used for marital purposes.” In re Marriage of Hubbs, 843 NE 2d 478 – Ill: Appellate Court, 5th Dist. 2006

Additionally, Florida’s dissipation “look back” period is a mere two years prior to the filing. § 61.075(1)(i) Fla. Stat. Furthermore, if the parties were getting along at the time there can be no dissipation finding because dissipation can only occur “when the marriage is undergoing an irreconcilable breakdown.” Zambuto v. Zambuto, 76 So. 3d 1044 – Fla: Dist. Court of Appeals, 2nd Dist. 2011

Illinois divorce courts can consider dissipation claims as old as 5 years. “no dissipation shall be deemed to have occurred prior to 3 years after the party claiming dissipation knew or should have known of the dissipation, but in no event prior to 5 years before the filing of the petition for dissolution of marriage” 750 ILCS 5/503(d)(2)

Illinois also requires a finding of the date of the irretrievable breakdown of the marriage before allowing a dissipation finding. The dissipation itself is evidence of the irretrievable breakdown.

A spouse who suspects a dissipation claim may be made should file for divorce in Florida where the other party must stringently prove that dissipation.

A spouse who plans to allege dissipation should file for divorce in Illinois where the dissipator must prove themself innocent.

Business Owner’s Divorce In Florida vs. Illinois

Business owners across the country generally get to keep the vast majority of the value of their business because the business was based on them, personally. You cannot divide a person in a divorce, so you could not divide the value of the business associated with that person. This concept is referred to as “personal goodwill” which is deducted from the total value of the business before making any award of the business’s value to the spouse.

Florida enshrined this concept that shapes the value and division of a business in the statute as recently as 2024

“The marital interests in a closely held business. The court shall determine the value of the marital interests in a closely held business as follows:

(I) The standard of value of a closely held business is fair market value. For purposes of this sub-subparagraph, the term “fair market value” means the price at which property would change hands between a willing and able buyer and a willing and able seller, with neither party under compulsion to buy or sell, and when both parties have reasonable knowledge of the relevant facts.

(II) If there is goodwill separate and distinct from the continued presence and reputation of the owner spouse, it is considered enterprise goodwill, which is a marital asset that must be valued by the court.

(III) The court must consider evidence that a covenant not to compete or a similar restrictive covenant may be required upon the sale of the closely held business, but such evidence alone does not preclude the court from finding enterprise goodwill.” § 61.075(6)(a)(1), Fla. Stat.

A subsequent Florida case law decision includes a powerful finding that makes any interest in a law, medical or other professional practice possibly 100% personal goodwill.

“What is evident in the caselaw, and what decides this case, is that personal goodwill of a professional is simply not a marital asset in Florida. Personal goodwill, whether it be that of a divorcing spouse or any one of thirty-four physician/shareholders in a medical practice, is “not a marketable asset distinct from the individual” who performs services.” 2024 WL 3076490 (Fla. App. Ct. June 21, 2024) (citations omitted).

In Illinois, valuation and divisibility of a business remains a creature of common law.

“[P]rofessional goodwill is [not] subject to valuation, division or distribution as marital assets” In Re The Marriage of Zells, 197 Ill. App. 3d 232 – Ill: Supreme Court 1991

These estimations of goodwill and value in both states will be established through the testimony of expensive financial experts which the business owner inevitably pays for.

When each party retains their own financial expert, expect each expert to testify to extremely low and high respective values while a judge decides who is more credible.

To mitigate this volatility and to make it easier on the judge, Illinois allows the court to appoint its own expert to value the business and the personal goodwill.

“The court may seek the advice of financial experts or other professionals, whether or not employed by the court on a regular basis. The advice given shall be in writing and made available by the court to counsel. Counsel may examine as a witness any professional consulted by the court designated as the court’s witness. Professional personnel consulted by the court are subject to subpoena for the purposes of discovery, trial, or both.” 750 ILCS 5/503(l)

A business owner spouse filing for divorce in Illinois will reduce both litigation costs and risk of extreme outcomes by appointing a court financial expert.

A business owner who is a lawyer, doctor or other member of a professional practice should absolutely file for divorce in Florida where it is likely that the entire business will be deemed personal goodwill. Therefore the value of that personal goodwilll will be indivisible in a Florida divorce. 

Specific Family Analysis

1) High-earning Spouse with homemaker who share children. Florida’s equal distribution of marital assets will be the preferred jurisdiction for the high-earning spouse…especially if they have assets earned and saved before the marriage. Illinois’ equitable distribution allows for disproportionate awards to spouses who have limited earning capacity. Any homemaker should be choosing Illinois as the jurisdiction for their divorce.

2) Two High-Earning Spouses Who Share Children. Both jurisdictions are likely to give two high-earners an equal split of marital assets. If one parent has the majority of the parenting time, that parent is likely to be awarded the marital home while having to reimburse the other parent for their half of the equity in the home.

3) Wealthy Older Couple. A wealthy older couple’s future earnings are likely irrelevant. If the vast bulk of the assets are marital, either jurisdiction is likely to split the marital assets equally. If one party is sure to be awarded significant non-marital assets, the other party may want to file for divorce in Illinois for the chance to be awarded a disproportionate share of the remaining marital assets.

ALIMONY/MAINTENANCE IN FLORIDA VS. ILLINOIS DIVORCE

Spousal support (called “alimony” in Florida and “maintenance” in Illinois) often represents the most significant and contentious financial differentiator between Illinois and Florida, with profound long-term implications for both the payor and the recipient. The foundational philosophies, methodologies for calculating awards, durational guidelines, and rules for modification diverge so sharply that the choice of forum can single-handedly determine a party’s financial security or liability for years, and potentially decades, following a divorce.

Where Illinois has adopted a rigid, mathematical model that prioritizes predictability and a clean break, Florida retains a highly discretionary, factor-driven system designed to preserve the marital standard of living and provide robust, long-term support for dependent spouses. A thorough understanding of the statutory schemes of Illinois statutes 750 ILCS 5/504 and Florida Statutes §61.08 and §61.14 is not merely academic; it is a fundamental component of strategic forum selection.

Maintenance In an Illinois Divorce

Illinois maintenance law is characterized by a highly structured, mathematical approach for determining the amount and duration of temporary and permanent maintenance awards.

The first step is whether an Illinois court will even award maintenance. “The court shall first make a finding as to whether a maintenance award is appropriate” 750 ILCS 5/504(a)

If there’s a significant difference between the two parties’ incomes, in my experience an Illinois divorce court will always award maintenance.

“[I]f the court finds that a maintenance award is appropriate, the court shall order guideline maintenance” 750 ILCS 5/503(b-1)

“Guidelines maintenance” is the exclusive formula which determines most Illinois divorced couples’ maintenance obligation.

“Maintenance…shall be calculated by taking 33 1/3% of the payor’s net annual income minus 25% of the payee’s net annual income.” 750 ILCS 5/503(b-1)(1)(A)

There is a cap on the maintenance amount if the lesser earner is, in fact, making more money.

“The amount calculated as maintenance, however, when added to the net income of the payee, shall not result in the payee receiving an amount that is in excess of 40% of the combined net income of the parties.” 750 ILCS 5/503(b-1)(1)(A)

Guidelines maintenance is going to be ordered in 95% of Illinois divorce cases.

“If the combined gross annual income of the parties is less than $500,000 and the payor has no obligation to pay child support or maintenance or both from a prior relationship, maintenance payable after the date the parties’ marriage is dissolved shall be in accordance with [the guidelines]” 750 ILCS 5/503(b-1)(1)

Illinois parties who make more than $500,000 gross can usually expect the court to apply guidelines maintenance up and to the $500,000 income level and then order additional maintenance that is “fair” but, typically, less than what guidelines maintenance would provide beyond the $500,000.

For the truly wealthy (hundreds of thousands in income and millions in equity), Illinois courts in my experience award a disproportionate share of the assets OR maintenance, not both. This is because at certain levels of wealth, money makes more money than any amount of work could.

The duration of the awarded Illinois maintenance is also a mathematical formula.

“The duration of an award under this paragraph (1) shall be calculated by multiplying the length of the marriage at the time the action was commenced by whichever of the following factors applies: less than 5 years (.20); 5 years or more but less than 6 years (.24); 6 years or more but less than 7 years (.28); 7 years or more but less than 8 years (.32); 8 years or more but less than 9 years (.36); 9 years or more but less than 10 years (.40); 10 years or more but less than 11 years (.44); 11 years or more but less than 12 years (.48); 12 years or more but less than 13 years (.52); 13 years or more but less than 14 years (.56); 14 years or more but less than 15 years (.60); 15 years or more but less than 16 years (.64); 16 years or more but less than 17 years (.68); 17 years or more but less than 18 years (.72); 18 years or more but less than 19 years (.76); 19 years or more but less than 20 years (.80). For a marriage of 20 or more years, the court, in its discretion, shall order maintenance for a period equal to the length of the marriage or for an indefinite term.” 750 ILCS 5/504(b-1)(1)(B)

Maintenance can be modified at any time after the entry of the final order if a significant change in circumstances occurs. But the maintenance payor usually makes more money until retirement, so that significant change rarely occurs.

Furthermore, Illinois does not statutorily codify a right to modify maintenance based solely on retirement.

Illinois caselaw contemplates retirement as a reason to reduce or terminate maintenance.

“[A]ssuming a worker lives long enough, it is inevitable and foreseeable that he will retire.” In re Marriage of Schrimpf, 293 Ill. App. 3d 246, 254 (Ill. App. Ct. 1997)

In Illinois, a reduction of maintenance due to retirement is not guaranteed.

“Whether a spouse may voluntarily retire or cut back on his income depends on the circumstances of each case. Relative factors are the age, health of the party, his motives in retiring, the timing of the retirement, his ability to pay maintenance even after retirement and the ability of the other spouse to provide for himself or herself.” In re Marriage of Smith, 396 NE 2d 859 – Ill: Appellate Court, 2nd Dist. 1979

And if you can still pay maintenance after retirement, you will probably be ordered to do so.

“Where a payor spouse has sufficient assets to continue to meet his or her maintenance obligation after retirement, a reduction in income does not, in and of itself, constitute a substantial change in circumstances to support a termination or reduction of maintenance.” In re Marriage of Folley, 2021 IL App (3d) 180427, ¶ 38

Unsurprisingly, Florida is very friendly to retirees…as you will see.

Alimony In A Florida Divorce

Florida’s alimony laws are governed by the newly reformed Fla. Stat. §61.08. Florida’s new alimony law is a hybrid system that provides more guidance and structure than in the past, while retaining judicial discretion.

A pivotal change under the new Florida alimony law is the express abolition of permanent alimony. The Florida alimony statute now recognizes several types of alimony, which the court may award alone or in combination, with specific parameters for each.

Florida provides four different types of alimony: bridge-the-gap, rehabilitative, durational, and temporary. § 61.08(1) Fla. Stat.

Bridge-the-gap alimony is designed to assist a party in transitioning from married to single life. This form of alimony is non-modifiable in amount or duration and is strictly limited to a maximum of two years under Fla. Stat §61.08(6).

Rehabilitative alimony is support which assists a party in developing the skills or education necessary to reestablish self-support. It requires a specific and defined rehabilitative plan and is modifiable upon a substantial change in circumstances or non-compliance with the plan as outlined in Fla. Stat. §61.08(7).

For marriages of short or moderate duration, the court may award durational alimony to provide economic assistance for a set period. Critically, the length of a durational alimony award may not exceed 50% of the length of a short-term marriage, defined as a marriage with a length of 3 to 10 years. “Durational alimony may not be awarded following a marriage lasting less than 3 years.” §61.08(8)(a) Fla. Stat.

Moderate-term marriage, defined as a marriage with a length of 10 to 20 years, may have a maximum alimony duration of 60% of the length of the marriage. §61.08(8)(a) Fla. Stat.

Long-term marriages of 20 years or longer in duration may have a maximum alimony duration of 75%of the length of the marriage.

The amount of alimony awarded under a durational award of alimony shall be “the amount determined to be the obligee’s reasonable need, or an amount not to exceed 35 percent of the difference between the parties’ net incomes, whichever amount is less.” §61.08(8)(c) Fla. Stat.

What is an obligee’s reasonable need? It is not determined by formula. “The criteria to be used in establishing this need include….the standard of living enjoyed during [the marriage’s] course” Canakaris v. Canakaris, 382 So. 2d 1197 – Fla: Supreme Court 1980

Mathematically, this need or capacity to pay alimony is most easily established by lines 123 and 124 of Florida’s Family Law Financial Affidavit which, specifically, forces each party to calculate their monthly income surplus or deficit after monthly spending.

The party requesting alimony proves the cost of the standard of living during the marriage, deducts their net income and requests the balance from the other party.

This requires unpacking in order to compare Florida’s durational alimony to Illinois’s stricter guidelines. Let’s imagine a wife who has a bonafide, provable reasonable standard of living of $10,000. She then proves that she makes $5000 net a month leaving a $5000 deficit for her reasonable needs. The husband make $10,000 net a month. The court can award the wife $5000 of her needs or 35% of the net difference between the two incomes (1000 – 5000 X 35% = $ 1750 a month).

It is very difficult to predict what an alimony requester will say their reasonable needs are and what the court will determine is actually reasonable. But there is a ceiling, the alimony recipient may not have a greater income than the payor after adding the alimony no matter what the needs of the recipient are. “The award of alimony may not leave the payor with significantly less net income than the net income of the recipient unless there are written findings of exceptional circumstances.” §61.08(9) Fla. Stat.

Furthermore, Florida alimony is only to cover real expenses and not imagined future expenses. “[A]limony may not include a savings component.” Mallard v. Mallard, 771 So. 2d 1138 – Fla: Supreme Court 2000.

The actual duration of durational alimony is not set in stone. Durational alimony can be modified upon a showing of changed circumstances.

“[T]he court may modify an order of support, maintenance, or alimony by increasing or decreasing the support, maintenance, or alimony retroactively to the date of the filing of the action or supplemental action for modification as equity requires, giving due regard to the changed circumstances or the financial ability of the parties” §61.14(1) Fla. Stat.

The changed circumstances must be proven by the party petitioning to change the durational alimony (always the payor). The burden of proof is much easier for a party modifying durational alimony because of his or her retirement.

“The court may reduce or terminate an award of support, maintenance, or alimony upon specific, written findings of fact that the obligor has reached normal retirement age as defined by the Social Security Administration or the customary retirement age for his or her profession and that the obligor has taken demonstrative and measurable efforts or actions to retire or has actually retired. The burden is on the obligor to prove, by a preponderance of the evidence, that his or her retirement reduces his or her ability to pay support, maintenance, or alimony. If the court determines that the obligor’s retirement has reduced or will reduce the obligor’s ability to pay, the burden shifts to the obligee to prove, by a preponderance of the evidence, that the obligor’s support, maintenance, or alimony obligation should not be terminated or reduced.” §61.14(3)(c) Fla. Stat.

In Florida, a divorce litigant anticipating retirement can file Supplementary Petition for Termination of Alimony or, in the alternative, a Modification Downward of Alimony outlining the anticipated retirement date and they will NOT be held in contempt if they stop or reduce alimony on that future date.

Scenario Application

For couple 1, the high-earner and homemaker, a careful comparison must be made of various outcomes. Florida law is generally more advantageous for the completely financially dependent spouse. Despite the abolition of permanent alimony, the factor-based analysis under Fla. Stat. §61.08(2) allows a court to tailor a durational alimony award that closely reflects the marital standard of living, which is more impactful the longer the marriage was. This is complemented by Florida’s strong presumption of an equal 50/50 split of marital property (Fla. Stat. §61.075(1)), which provides a solid financial foundation which the court will not be allowed to consider as providing for her reasonable needs. Kaufman v. Kaufman, 541 So. 2d 743 – Fla: Dist. Court of Appeals, 3rd Dist. 1989. For the high-earning payor in this scenario, Illinois is more advantageous. The formulaic approach to maintenance creates a predictable cap on obligations, and the defined durational guideline provides a clearer endpoint, limiting long-term financial exposure. Again, a detailed comparison of the possible results of each jurisdiction must be made before deciding to file in Illinois or Florida.

For couple 2, the dual high-earning parents, Illinois law is typically more advantageous for both spouses. The state’s maintenance formula often results in a minimal or zero obligations when both parties have substantial, independent incomes, facilitating a clean financial break. Furthermore, Illinois’ discretionary approach to property division allows for outcomes that reflect financial contributions more directly than Florida’s starting point of equality. For these parties, Florida’s factor-based alimony section introduces unnecessary uncertainty and potential for costly litigation over an issue that may be minimal or nonexistent under Illinois’s straightforward calculation.

For couple 3, the wealthy retired couple, if there is no current income there is no need or capacity to pay alimony. The parties’ equal division of marital assets should provide both parties with sufficient assets to support themselves. If one party has a vastly larger amount of passive income, the alimony may continue. If one party is actually working then Florida’s needs based formula without regard to assets would benefit the non-working spouse.

The strategic choice between Illinois and Florida hinges on a precise understanding of their divergent statutory frameworks and how they interact with a client’s specific financial and familial circumstances. The question of where to file is not one of which state has “better” laws, but of which state’s law is better suited to a client’s facts and objectives. Florida offers a comprehensive safety net designed to preserve the economic status quo for dependent spouses and children, while Illinois provides a structured path to financial independence and a clean break for parties on relatively equal footing. Ultimately, Florida’s laws are engineered to protect the vulnerable, and Illinois’s are calibrated to reward the independent.

DIVORCE CASES WITH CHILDREN IN ILLINOIS OR FLORIDA

The previous sections of this article covered considerations for parties that were apart from their children. Couples with children face additional issues that must be resolved and balanced. Usually, there is not much choice in where to file because the children will live in one state or the other and determine the jurisdiction based on the Uniform Child Custody Jurisdiction And Enforcement Act (UCCJEA)

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

The UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act) governs which state may make an initial child custody determination. The Act also provides procedures for enforcing, modifying, and declining jurisdiction between states. The Act’s central policy is stability for the child: the Act gives exclusive, continuing jurisdiction to the state that is the child’s “home state” The Act limits forum-shopping (picking the state to file for strategic benefit, i.e. exactly what this article is coaching) by requiring other states to respect a valid custody order unless the issuing court loses continuing jurisdiction.

The rules allocate priority to the child’s home state (usually defined by six months of residency), permit significant-connection jurisdiction if no home state exists, and authorize emergency temporary jurisdiction when a child is physically present and at risk. The jurisdictional inquiry under the UCCJEA is largely factual; courts look to residence, where evidence is located, the child’s community ties, and whether exercising jurisdiction would be convenient or contrary to the child’s best interests.

Illinois’ UCCJEA

Illinois has enacted the UCCJEA as part of the Illinois Compiled Statutes (750 ILCS 36/). Illinois follows the same core structure as the model Act and Florida: home-state priority, significant-connection jurisdiction where home state rules do not yield jurisdiction, temporary emergency jurisdiction for urgent child-safety situations, and continuing exclusive jurisdiction following a valid order. Illinois courts likewise require careful factual proof of the child’s residence, community contacts, schooling, and where relevant witnesses and records are located.

Florida’s UCCJEA

Florida has implemented the UCCJEA in Chapter 61, Part II. Florida’s statute establishes the home-state rule and the exclusive, continuing nature of child custody orders and devotes detailed provisions to initial jurisdiction, temporary emergency jurisdiction, continuing jurisdiction, and enforcement of out-of-state orders. Florida courts will not base jurisdiction solely on the physical presence of just the parent of a child; Florida courts instead ask whether Florida is the child’s home state (usually six months’ residence immediately prior to filing) or whether Florida has a substantial connection and relevant evidence if no home state exists. Florida also includes express standards for declining jurisdiction and for handling enforcement and modification of foreign orders. Practically, Florida judges place weight on school records, medical and dental records, and proof of who handled day-to-day parenting when deciding whether Florida has proper UCCJEA jurisdiction.

Because the UCCJEA is a jurisdictional gatekeeper, filing first in what is, per the UCCJEA the child’s “home state” will lock the divorce into the jurisdiction of that state. The practical lawyer’s checklist when a client may litigate interstate custody includes these steps: (1) gather proof of the children’s residence for the six months prior to filing; (2) assemble proof of who handled routine parenting tasks; (3) confirm any existing out-of-state orders and their dates; and (4) if emergency relocation or immediate safety concerns exist, be ready to seek temporary emergency jurisdiction and make a strong record to justify the emergency order under the statute.

In short, neither Florida nor Illinois has an inherent jurisdictional advantage over the other under the UCCJEA as both states use the same statute. UCCJEA outcomes are almost entirely fact-dependent, with the child’s residence and any prior order usually controlling a state’s authority over a child.

Child Support

Child support systems are designed to allocate the financial responsibility for children between parents. Legislatures adopt guidelines systems to promote predictability and uniformity, producing a presumptive award that courts apply unless specific statutory deviations are justified.

Key recurring litigation issues include the measure of income (what counts and what can be deducted), the treatment of health insurance and childcare costs, how the guideline system handles high incomes and extraordinary expenses, and the court’s approach to imputing income when a parent is voluntarily unemployed or underemployed. Lawyers must assemble complete income disclosures, spreadsheets of recurring expenses, documentation of extraordinary costs, and any proof necessary to support deviation arguments.

Florida Child Support Calculation

Florida’s child support statute establishes a presumptive guideline child support amount. The statute and the Florida Supreme Court’s approved worksheet prescribe the steps: 1) calculate each parent’s net month income, 2) sum the parents’ net incomes to obtain combined net available income, 3) refer to the Florida “Child Support Guidelines Chart” to read the basic monthly obligations for the number of children, allocate the percentage of responsibility between the parents based on their relative net incomes, 4) Take the child support for each parent and multiply the amount by 1.5, 5) Calculate the percentage of overnight stays the child spends with each parent, 6) The difference between each parties’ obligation is the amount of support that the more highly obligated parent pays to the other parent, 7) finally, calculate the child care and medical expenses (including insurance) of the child and divide that proportionately

The Florida statute explicitly renders the guideline amount presumptive. A Florida divorce court “must” order guidelines child support unless the court finds application of the guideline would be inequitable- and requires supporting written findings when the court deviates.

For combined incomes above $10,000 per month (which is almost anyone who has the capacity to choose to live in Florida or Illinois, Florida’s procedure is to take the base at $10,000 and add a percentage of the excess 5% for one child, 7.5% for two children, 9.5% for three children, 11% for four children, 12% for five children and 12.5% for six children.

All of this verbiage is too complicated even for dually licensed Florida and Illinois family law attorneys to compare potential child support obligations between the two states. We just use special calculators.

While Florida divorce courts “must” apply guidelines, most parents settle on a set amount of child support that is usually a round number close to the guidelines amount.

Finally, Florida divorce courts do not require parents to contribute to their children’s college expenses. “[A] trial court may not order post-majority support simply because the child is in college and the divorced parent can afford to pay.” Grapin v. Grapin, 450 So. 2d 853 – Fla: Supreme Court 1984

The most concrete conclusion that can be made without explicitly calculating child support is that child support is minimal in Florida because 50/50 custody is the default and the more parenting time a child support payor has, the less child support they pay.

Illinois Child Support Calculation

Illinois calculates child support using an Income Shares model which is very similar to Florida’s referenced Child Support Guidelines chart and a state-published schedule of basic obligations based on combined net income and number of children.

Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/505 requires 1) computing each parent’s net income,  2) adding the net incomes for a combined net income, 3) consulting the Income Shares Schedule of Basic Child Support Obligations to determine the total basic child support obligation for the combined net income and the number of children, and 4) allocating the resulting obligation between the parties proportionately to their shares of combined net income, 5) The parent with less parenting time pays this allocated amount to the parent with more parenting as child support.

The numbers are what they are. Use the various online calculator for state-to-state comparison. In my 19 years of practice no one has ever been able to live off of received child support and no one has ever been bankrupted by paying child support.

The key distinction between Florida and Illinois does NOT gradually reduce child support as the parenting times of the two parents become more equal. Instead, child support is the same no matter the parenting time unless the child spends 146 or more overnights with the parent paying support. If a child is spending more than 146 days with the support paying parent, the exact same basic child support obligation is multiplied by 1.5 (don’t worry, it’s about to go way down), gets split proportionately to the parties incomes and then gets divided again by the percentage of overnights the child splits with the parents.

“If each parent exercises 146 or more overnights per year with the child, the basic child support obligation is multiplied by 1.5 to calculate the shared care child support obligation. The court shall determine each parent’s share of the shared care child support obligation based on the parent’s percentage share of combined net income. The child support obligation is then computed for each parent by multiplying that parent’s portion of the shared care support obligation by the percentage of time the child spends with the other parent. The respective child support obligations are then offset, with the parent owing more child support paying the difference between the child support amounts.” 750 ILCS 5/505(a)(3.8)

Illinois, like Florida, permits deviation for extraordinary needs or when the result would be unjust or inappropriate but this is extremely rare. Deviation from the guidelines support is not rare when the guidelines stop at combined net annual income of $24,525. Courts can just award child support based on the needs of the child beyond that income level. This stands in stark contrast to Florida’s policy of always increasing child support as income increases

Rarer still, Illinois even allows for the parent who has majority time with the child to pay the parent with less time, if that would be in the best interests of the child. In re Marriage of Turk, 996 NE 2d 62 – Ill: Appellate Court, 1st Dist., 5th Div. 2013

Illinois has a statute that requires parents to contribute to college expenses. “The court may award sums of money out of the property and income of either or both parties…, as equity may require, for the educational expenses of any child of the parties. Unless otherwise agreed to by the parties, all educational expenses which are the subject of a petition brought pursuant to this Section shall be incurred no later than the student’s 23rd birthday, except for good cause shown, but in no event later than the child’s 25th birthday.” 750 ILCS 5/513(a)

Filing in Illinois will expose both parents to significant obligations to pay their children’s college expenses.

Florida’s presumption of 50/50 parenting combined with its division of obligation based on overnights will make a high-earning parent choose Florida for their preferred divorce jurisdiction. That being said, child support is miniscule compared to the differences Illinois and Florida have between them in dividing assets and establishing alimony/maintenance.

Scenarios For Each Couple

For couple 1, the high-earner and the homemaker, let’s presume that high-earner makes $20,000 a month. Also, let’s presumed that the homemaker will have more than 60% of the children’s overnights. In Illinois the high-earner would pay $3,089 a month in child support for two children (assuming no maintenance or child expenses). The Florida high-earner with the same incomes but the presumption of having 50% parenting time (as Florida law requires) would pay $1,942 for two children.

For Party 2, the dual high-earning parents, again let’s presume that they both make $20,000 a month. In Illinois, if one parent has more than 60% of the time (very common even if both parents work), the child support to that parent would be $2490 a month. If the parents split parenting time in Illinois 50/50 there would be a deminimus amount of $70 a month to the parent with the extra day. In Florida there is a presumption of 50/50 custody. If one parent had 183 days and the other party had 182 days, the party with 182 days would have to pay $42 a month. This just underscores that child support is a terrible reason to pick a jurisdiction. Child support always follows custody which is a much better reason to target a particular state for your divorce filing.

CHILD CUSTODY

Custody disputes center on allocation of parental responsibility; major decision-making for the child and parenting time (physical custody/time-sharing). Both Florida and Illinois apply a best-interests standard; that standard is typically implemented through an enumerated list of factors intended to support the child’s safety, emotional development, stability, the parents’ fitness and willingness to cooperate, and any history of abuse or of substance misuse.

Practical disputes concern not just whether a parent receives decision making authority or primary time, but also the structure of exchange logistics, school placement decisions, and the processes for resolving future disputes between co-parents. In reality, custody is rarely determined on the technical basis that other aspects of a divorce, support and division of assets require. Courts are guided by practicality. If the child is happy and healthy, what plan will preserve stability and minimize disruption to the child’s routine? If the child needs intervention for their physical, emotional and mental needs, what plan would best execute that intervention?

Florida Custody Determination

Custody in a Florida divorce is simple: “Unless otherwise provided in this section or agreed to by the parties, there is a rebuttable presumption that equal time-sharing of a minor child is in the best interests of the minor child. To rebut this presumption, a party must prove by a preponderance of the evidence that equal time-sharing is not in the best interests of the minor child.” (F.S. §61.13(2)(c)). This presumption fundamentally shapes litigation, placing the burden on the party opposing a 50/50 schedule to prove that an equal time-sharing arrangement is not in the child’s best interests. In the words of a Charlotte County, Florida judge to me in my first Florida hearing, “I am going to give a 50/50 schedule unless one of these parents is an axe-murderer.”

Florida courts will only decide on an unequal parenting schedule after a full evidentiary hearing with everyone testifying to every detail of the child’s life: the parents, the grandparents, the teachers, the therapists, the expensive parenting evaluators. Evidentiary proof of day-to-day parenting must be properly put before the court. School communications, calendars, medical records, and witness declarations that show who handled child-related decisions must be properly submitted to persuade judges that a parenting plan will be least disruptive when it preserves the established caregiving structure. This takes an enormous amount of time and expense which is why virtually every Florida child custody case becomes a 50/50 custody case if logistically feasible.

A Florida divorce judge cannot cut corners and simply ask the child “who do you want to live with and for how long.” The one person who cannot testify in a Florida custody battle is the child themself.

“Unless otherwise provided by law or another rule of procedure, children whom are witnesses, potential witnesses, or related to a family law case, are prohibited from being deposed or brought to a deposition, from being subpoenaed to appear at any family law proceeding, or from attending any family law proceedings without prior order of the court based on good cause shown.” Florida Family Law Rule of Procedure 12.407

There are exceptions to the rule that children are not to testify in court in Florida but they occur very infrequently.

Once custody is locked in, it’s hard to change. Florida law sets a high bar for modifying parenting plans: a modification generally requires a substantial and material change in circumstances and a determination that the modification is in the best interests of the child. Florida’s best interests factors cover many of the familiar concerns: the child’s relationship with each parent, the mental and physical health of the parties, home and school environment, history of violence, and the capacity of the parents to cooperate, to name a few. Florida also allows courts to award sole parental responsibility or to limit parenting time when the child’s safety requires it; courts frequently use supervised time, restrictions, or phased reintroduction to manage any risk to the child. Because Florida courts commonly work with parenting-time guidelines and written parenting plans, practical presentation of a workable schedule that prioritizes schooling and extracurricular needs is persuasive.

People in Florida are rarely from Florida. After a divorce, they often want to go home to other states where their support systems are. This is also a herculean undertaking.

Under Fla. Stat. §61.13001, a parent seeking to relocate must file a petition to relocate and serve it on the other parent and all persons entitled to time-sharing or access if the relocation will change the child’s residence by at least 50 miles or will last at least 60 consecutive days. If a timely objection is not filed, the statute presumes the relocation is in the child’s best interest and the court may enter an order adopting the proposed time-sharing and transportation arrangements. The petition must include the proposed schedule and transportation plan and the relocating parent bears the ultimate burden to show that any approved relocation is in the child’s best interests.

Illinois Custody Determination

Illinois similarly allocates parental responsibilities under the Illinois Marriage and Dissolution of Marriage Act (IMDA). The statutory framework separates allocation of decision-making responsibility from parenting time and requires the court to allocate parenting time according to the child’s best interests. Illinois’ IMDMA has an extensive statutory list of factors including the child’s needs, the parent’s willingness to cooperate, history of violence, and the geographical distance between households. Illinois law presumes both parents are fit and will not deny a parent parenting time unless there has been a finding of endangerment. 750 ILCS 5/603.10.

That being said, Illinois has no presumption of equal parenting time. Because of that lack of presumption and the chaotic nature of divorce, where one parent usually moves out of the house the children live in, practically, equal parenting time is the exception, not the rule. Furthermore, Illinois judges are suspicious of parents who fight for equal parenting time when that schedule would benefit them by triggering the massive drop in child support if the payor receives more than 40% of the parenting time.

Similar to Florida, a parent intending to relocate from Illinois must provide written notice to the other parent at least 60 days before the move (750 ILCS 5/609.2(d)). Illinois defines a relocation to include moves more than 25 miles from the child’s current residence, or a move outside of Illinois (750 ILCS 5/609.2(h)). If the non-relocating parent signs the notice, relocation is allowed and the parenting plan shall be modified by agreement (750 ILCS 5/609.2(e)) If the other parent objects, the relocating parent must file a petition and the court will determine whether the relocation is in the child’s best interests by considering statutory factors (including arrangements for parental responsibilities, minimization of impairment to the parent-child relationship, and any other relevant factors).

In Illinois, to settle custody disputes, courts appoint family law attorneys to serve Guardian Ad Litems. Guardian Ad Litems investigate the parent-child relationships, the co-parenting dynamic and make recommendations to the judge as what the best interests of the child actually are. These recommendations are completely unrestrained from the Rules of Evidence that formalize and restrain typical court testimony. Therefore, if an Illinois divorce judge wants to corroborate something a Guardian Ad Litem has reported, the Illinois divorce judge can talk to the children in the judge’s chambers.

“Court’s interview of child. The court may interview the child in chambers to ascertain the child’s wishes as to the allocation of parental responsibilities. Counsel shall be present at the interview unless otherwise agreed upon by the parties. The entire interview shall be recorded by a court reporter. The transcript of the interview shall be filed under seal and released only upon order of the court.” 750 ILCS 5/604.10(a)(emphasis mine)

Scenarios For Each Couple

For the family with a high-earner and a homemaker, the homemaker’s continuous care and routine management of the children typically produce a strong factual showing for substantial parenting time and significant decision-making authority in both Florida and Illinois if those caregiving patterns are well documented. Florida’s presumption of a 50/50 division of parenting time means that the homemaker will have to prove all of that via an expensive, time-consuming trial. The Florida homemaker’s best argument against 50/50 parenting time is that the primary earner cannot physically be present for a 50/50 parenting time schedule because of their career.

In Illinois, the homemaker can rely on the Guardian Ad Litem to affirm their role as the primary parent and allocate a majority of the parenting time based on that. There is a strong cultural bias against 50/50 custody in Illinois when one parent was clearly the primary caretaker of the children.

For the family with dual-income parents, where both parents work, courts in both states will focus heavily on parental availability, the logistics of work schedules, and the children’s need for stability. Judges will want to see proposed parenting plans that accommodate both parents’ employment, schooling schedules, and travel. Where both parents have intense commitments, the state that is more willing to fashion flexible, remote work-friendly arrangements may be more attractive; however, because both states prize continuity and the child’s best interest, neither forum will automatically favor one high-earning parent over the other merely because of work demands, but will account for work schedules.

In Florida, dual high earners will each get 50/50 parenting schedules if their career schedules can accommodate it. The 50/50 parenting time presumption is extremely hard to overcome for two parents who both work full-time.

In Illinois, there is no 50/50 presumption of parenting time. If both parents work but one parent can prove that they consistently provide more for the children, that parent is very likely to be awarded more parenting time when the Guardian Ad Litem corroborates that unequal parenting time is in the best interests of the child.

Custody battles are extremely expensive in both states. Parties often turn to hiring additional experts (psychiatrists mostly) to convince judges that the sum of the facts presented indicates that a parent should have more or less parenting time.

In my experience practicing in both jurisdictions, Florida courts are quicker to set trial dates than Illinois court and limit the time allowed for trial, making some aspects of trial more efficient.

Illinois may have a rule that requires custody trials to occur within 18 months of the filing of a Petition for Dissolution of Marriage but this rule is consistently disregarded.

GETTING A DIVORCE CASE OUT OF ILLINOIS OR FLORIDA IF YOUR SPOUSE FILED IN A STATE THAT IS BAD FOR YOU

For a divorce court’s order to be binding in any state on any one person, that court must have personal jurisdiction over the person. Personal jurisdiction is “a court’s power to bring a person into its adjudicative process.” Black’s Law Dictionary (10th ed. 2014)

Just because your spouse filed for divorce in Illinois or Florida does not mean that state has personal jurisdiction over you.

If Your Spouse Filed For Divorce In Illinois

Illinois has a statute that outlines what can constitute personal jurisdiction.

“Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:

(1) The transaction of any business within this State;

(2) The commission of a tortious act within this State;

(3) The ownership, use, or possession of any real estate situated in this State;

(4) Contracting to insure any person, property or risk located within this State at the time of contracting;

(5) With respect to actions of dissolution of marriage, declaration of invalidity of marriage and legal separation, the maintenance in this State of a matrimonial domicile at the time this cause of action arose or the commission in this State of any act giving rise to the cause of action;

(6) With respect to actions brought under the Illinois Parentage Act of 1984,  1 as now or hereafter amended, or under the Illinois Parentage Act of 2015   2 on and after the effective date of that Act, the performance of an act of sexual intercourse within this State during the possible period of conception;

(7) The making or performance of any contract or promise substantially connected with this State;

(8) The performance of sexual intercourse within this State which is claimed to have resulted in the conception of a child who resides in this State;

(9) The failure to support a child, spouse or former spouse who has continued to reside in this State since the person either formerly resided with them in this State or directed them to reside in this State;

(10) The acquisition of ownership, possession or control of any asset or thing of value present within this State when ownership, possession or control was acquired;

(11) The breach of any fiduciary duty within this State;

(12) The performance of duties as a director or officer of a corporation organized under the laws of this State or having its principal place of business within this State;

(13) The ownership of an interest in any trust administered within this State; or

(14) The exercise of powers granted under the authority of this State as a fiduciary.” 735 ILCS 5/2-209(a)

If you ever “maintained a matrimonial domicile” in Illinois, Illinois has personal jurisdiction over you in a divorce.

Likewise, if your child was possibly conceived in Illinois, Illinois has personal jurisdiction over you in a divorce.

If you told your spouse, “Go move to Illinois,” Illinois has personal jurisdiction over you in a divorce.

Beyond these explicit facts, Illinois could find jurisdiction if you did any business in Illinois or had possession or control of anything in Illinois. If your spouse is holding some kind of marital property or spending marital funds in Illinois…you are doing exactly that.

If you did none of these things, you can file a motion to dismiss the Illinois divorce action for lack of jurisdiction…but it will be very difficult to claim you have no contacts with the state of Illinois in a divorce.

If Your Spouse Filed For Divorce In Florida

Florida’s statute that confers personal jurisdiction is colloquially referred to as “The Long Arm Statute.”

“A person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself… to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:…(5) With respect to a proceeding for alimony, child support, or division of property in connection with an action to dissolve a marriage or with respect to an independent action for support of dependents, maintaining a matrimonial domicile in this state at the time of the commencement of this action or, if the defendant resided in this state preceding the commencement of the action, whether cohabiting during that time or not. This paragraph does not change the residency requirement for filing an action for dissolution of marriage… (8) With respect to a proceeding for paternity, engaging in the act of sexual intercourse within this state with respect to which a child may have been conceived.” Fla. Stat. § 48.193(1)(a)

Per the statute if you “resided in [Florida] preceding the commencement of the action” Florida will have personal jurisdiction over you in a divorce action. But there is a catch. “Preceding” has to be almost immediately preceding.

“[J]urisdiction must be based on current (not exclusively past) substantial and not isolated activity within Florida” Murphy v. Murphy, 342 So. 3d 799 – Fla: Dist. Court of Appeals, 1st Dist. 2022

Past connections to Florida will not count. If you did something in the past in Florida but aren’t doing it anymore, you can file a motion to dismiss the Florida divorce (at least as it relates to you) for lack of personal jurisdiction.

Florida is such an attractive state to live in with zero income tax and generous homestead exemptions that almost everyone remotely associated with Florida has somehow declared Florida their home state and, thereby, “resides” in Florida per the Florida Long Arm Statute.

Forum Non Conveniens

If you cannot get a divorce case dismissed from a state for lack of personal jurisdiction you can ask that it be removed to another state because it’s impractical or inconvenient to pursue the case where it was originally filed.

Forum non conveniens is “[t]he doctrine that an appropriate forum – event though competent under the law – may divest itself of jurisdiction if, for the convenience of the litigants and the witnessses, it appears that the action should proceed in another forum in which the action might also have been properly brought in the first place.” Black’s Law Dictionary (11th ed. 2019)

Forum Non Conveniens Claims In Florida

Florida has “a strong presumption [that] favors the plaintiff’s choice of forum.” Cortez v. Palace Resorts, Inc., 123 So. 3d 1085 – Fla: Supreme Court 2013 (quoting Kinney System, Inc. v. Continental Ins. Co., 674 So. 2d 86 – Fla: Supreme Court 1996)

Florida’s non conveniens claims are codified.“An action may be dismissed on the ground that a satisfactory remedy may be more conveniently sought in a jurisdiction other than Florida when: (1) the trial court finds that an adequate alternate forum exists which possesses jurisdiction over the whole case, including all of the parties; (2) the trial court finds that all relevant factors of private interest favor the alternate forum, weighing in the balance a strong presumption against disturbing plaintiffs’ initial forum choice; (3) if the balance of private interests is at or near equipoise, the court further finds that factors of public interest tip the balance in favor of trial in the alternate forum; and (4) the trial judge ensures that plaintiffs can reinstate their suit in the alternate forum without undue inconvenience or prejudice. The decision to grant or deny the motion for dismissal rests in the sound discretion of the trial court.” Fla. R. Civ. P. 1.061

Florida Rule of Civil Procedure 1.061 asks the court to examine the private interests of the parties first.

Private interest analysis is as follows: “Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions to the enforcibility [sic] of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, “vex,” “harass,” or “oppress” the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.” Cortez v. Palace Resorts, Inc., 123 So. 3d 1085 – Fla: Supreme Court 2013 (quoting Gulf Oil Corp. v. Gilbert, 330 US 501 – Supreme Court 1947)

Is it really that expensive to proceed with a divorce in Florida vs. the other state? Maybe if all the witnesses live in the other state and you’ll have to fly them out to Florida to testify. But, couldn’t you just ask the court for permission to allow them to testify via Zoom?

If the private interests to have the case in either state are almost equal, the court consider public interests as a basis to remove the case from Florida.

Public interests are: “Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.” Cortez v. Palace Resorts, Inc., 123 So. 3d 1085 – Fla: Supreme Court 2013 (quoting Gulf Oil Corp. v. Gilbert, 330 US 501 – Supreme Court 1947)

Again, if the items at issue are all in another state, it’s probably best to have that state resolve those items, as that state is familiar with the context of the items (such as the value of real estate).

If a divorce is being decided using a prenuptial agreement using another state’s choice of law, perhaps the case should be transferred to that other state, where the judges are more familiar with the law to apply.

Forum Non Conveniens Claims In Illinois

Illinois prefers that a divorce case stay where it was filed. “’In most instances, the plaintiff’s choice of forum will prevail, provided venue is proper and the inconvenience factors attached to such forum do not greatly outweigh the plaintiff’s substantial right to try the case in the chosen forum.’ ” First American Bank v. Guerine, 198 Ill. 2d 511, 520 (2002) (quoting Peile v. Skelgas, Inc., 163 Ill. 2d 323, 335-36 (1994))

In Illinois, “forum non conveniens is an equitable doctrine founded in considerations of fundamental fairness and the sensible and effective administration of justice…This doctrine allows a trial court to decline jurisdiction when trial in another forum ‘would better serve the ends of justice.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 442 (2006)(quotations omitted)

When invoking an Illinois forum non conveniens claim, an Illinois court must consider“(1) the convenience of the parties; (2) the relative ease of access to sources of testimonial, documentary, and real evidence; and (3) all other practical problems that make trial of a case easy, expeditious, and inexpensive.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 443 (2006)

The currently filed Illinois divorce action is clearly convenient to the petitioner who filed the divorce in Illinois.

In this age of instant access to information, it’s hard to argue that any testimonial, documentary, or real evidence can’t be presented via Zoom.

But, if the vast majority of the potential witnesses in the case lived in a separate state, a forum non conveniens claim could be deemed practicable by an Illinois divorce court, thereby removing the case from Illinois.

Finally, Forum Non Conveniens does NOT apply if there are children. The children’s residency will always govern the choice of jurisdiction per the UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act)

CLOSING REMARKS ABOUT THE CHOICE TO FILE FOR DIVORCE IN ILLINOIS OR FLORIDA

This analysis of the seemingly simple question: where should you file for divorce? Illinois or Florida is 13,000 words. That’s longer than famous books like “The Metamorphoses” By Franz Kafka or “A Death In Venice” by Thomas Mann. Yet, this article applies no facts to the myriad of rule comparisons this article describes. For a complete analysis, there is no choice at all. You have but one choice: to contact the only human being who has properly analyzed this relatively common question. Me, Russell Knight. So, schedule a call with me, and I’ll go over your facts from either my home in Glenview, Illinois, or my home in Naples, Florida. We will determine once and for all in which state you should take this momentous life step.