Divorces in Illinois have been governed by the Illinois Marriage and Dissolution of Marriage Act, originally enacted in 1979. Since then, changes in family dynamics, including recent developments in Illinois law related to same-sex marriage, parentage, adoption, and in areas of embryo preservation and rights, rendered the law outdated and in need of an update. For years, Illinois legislators, judges, and prominent practitioners in the field have pushed for a revised version of the Act, but only recently has this been accomplished.
The revised law, which will become effective on January 1, 2016, has been updated in several significant ways that impact how divorces and related issues will be addressed. The law will apply to new and pending cases and will change the way that divorcing parties navigate the process of divorce.
The following is a brief summary of some of the important changes to the Act:
Presently, a person seeking a divorce must allege “grounds” for the divorce. Most commonly, people cite “irreconcilable differences” as the reason for a divorce. To prove irreconcilable differences have arisen to cause a marriage to fail, the party filing for divorce must prove that the parties have lived separate and apart for a continuous period of in excess of two years, or agree with the other party to waive the separation period if they have lived apart for six months. The must also prove that the marriage is over and not salvageable. The other fault-based reasons include: impotency, adultery, desertion, habitual drunkenness, excessive use of addictive drugs, poisoning, extreme and repeated physical or mental cruelty, one party being convicted of a felony or other infamous crime, or infecting the other spouse with a sexually transmitted disease.
The revised law eliminates all of the fault-based grounds for getting divorced, leaving the only grounds of irreconcilable differences. Further, instead of having to prove a statutory period of separation, the new law eliminates the separation period as well. These changes shift the focus away from having the parties blame one another for the divorce in order to allow them to proceed as amicably and quickly as possible.
The revised law makes the divorce process more streamlined and expedited. As an example, under the current law, there is no time limit for the court to render a final judgment of dissolution of marriage. The new law requires the court is required to enter its judgment within sixty days of the closing of proofs, or after a trial.
Also, under the current law, hearings for temporary child support and maintenance are evidentiary in nature. This means that both parties may testify and offer documents into evidence to prove whether child support and/or maintenance should be awarded, and in what amounts. The revised law provides that temporary child support and maintenance can be heard on a summary basis, similar to the way petitions for attorney fees can be heard. This means that comprehensive, evidentiary hearings are not mandatory. This revision applies to both pre- and post-dissolution cases.
Additionally, the new law requires parties to enter into and submit a parenting agreement to the court within 120 days of filing for divorce. This is a change that will force parties to work through disagreements related to parenting responsibilities on an expedited basis so as to minimize the disruption to the children as much as possible. The parenting agreements must be comprehensive and address all issues related to parental decision making and parenting time, among several other statutory criteria. Currently, a court must make a decision related to custody within eighteen months of filing. This will now be accomplished much quicker.
Calculation of Support:
The current law provides guidelines for child support, set based upon a percentage of the supporting party’s net income. The current law allows for the following deductions from gross income to determine net income for child support purposes:
- Federal income tax
- State income tax
- Social Security tax (i.e., FICA)
- Mandatory retirement contributions required by law or as a condition of employment
- Union dues
- Dependent and individual health and hospitalization insurance premiums
- Life insurance premiums (but only if ordered by the court to reasonably secure payment of ordered child support)
- Prior obligations of child support or maintenance actually paid pursuant to a court order
- Maintenance obligations in the pending proceeding actually paid
- Expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income, medical expenditures necessary to preserve life or health, reasonable expenditures for the benefit of the child and the other parent, exclusive of gifts.
The new law will also allow a child support payor to deduct student loan payments in calculating his or her “net income.”
Income sharing, which has been discussed in another blog post on this site, was proposed for this new law but it did not get approved.
The new law limits parents’ responsibilities to pay post-high school (college) education expenses, so that the maximum amount a party could be ordered to contribute is set at the cost of in-state attendance at the University of Illinois Champagne-Urbana, not including medical and living expenses. Further, any obligation must be incurred before the child’s 23rd birthday, unless good cause can be shown. Even if good cause is shown, no award can ever be made after a child’s 25th birthday. Additionally, the parents’ obligation to pay will terminate if the child does not maintain a “C” grade point average, among other things.
The term “custody” has been used for decades in reference to parental responsibilities and parenting time. The new law eliminates the terms joint or sole legal custody, residential custody, and visitation and replaces those terms with “parental responsibilities” and “parenting time.” This is aimed at reducing the win/lose sentiments associated with awards of custody under the current version of the law. Decisions related to these issues are still governed by the “best interest of the child standard.”
Under the current law, to modify custody, a party must show a substantial change in circumstances or serious endangerment. Under the new law, there are four other ways to modify custody without the need to show a change in circumstances. These four alternatives are: 1) if the modification is minor; 2) if the modification reflects the actual arrangement the parties have adhered to for the previous six months without objection by either party; 3) when a modification is needed to correct an issue that the judge would not have ordered if it had known about it at the time the judgment was entered; or 4) if the parties agree to the change.
A parent with at least 50% parenting time with the children is also now able to relocate from Illinois using an expedited procedure. The parent can send a notice to the clerk of court with at least sixty days’ notice to the other parent. If the non-relocating parent signs the notice, no further legal action is required. In the absence of signed consent, the petitioning parent must file a petition with the court, as they would under the current law.
Further, the new law permits parent with at least 50% parenting time can relocate up to 25 miles from their residence without notice (in Cook and collar counties) and up to 50 miles in other counties. If the move is to a bordering state, however, the move cannot me more than 25 miles from the current residence, and Illinois will retain jurisdiction.
These changes are significant. Contact us to determine how they may affect you.