On January 1, 2016, many changes took effect with regard to the Illinois Marriage and Dissolution of Marriage Act (“IMDMA” or “Act”). The revised statute looks very different from the law Illinois family law attorneys and their clients have come to know. Detailed below are some noteworthy areas where the law concerning divorce, parenting, and property division has changed.
Changes to Grounds for Divorce
The revised IMDMA has eliminated all fault-based grounds for divorce.
Since 1977, Illinois has had both “no-fault” and “fault-based” grounds for divorce. Now, couples in Illinois are left with a single ground for divorce, “irreconcilable differences”.
Additionally, the revised statute eliminates the two (2) year separation period previously required to dissolve a marriage. The aforementioned provision was replaced with a six (6) month separation period which provides, “If the parties live separate and apart for a continuous period of not less than 6 months immediately preceding the entry of the judgment dissolving the marriage, there is an irrebuttable presumption that the requirement of irreconcilable differences has been met.” 750 ILCS 5/401(a-5).
Thus, an individual seeking a divorce in Illinois now only needs to assert that irreconcilable differences have led to an irretrievable breakdown of the marriage and the parties have lived separate and apart for six (6) consecutive months by the time a judgment of divorce is entered.
Litigants should be aware that living separate and apart does not mean an actual physical separation of the divorcing spouses. The parties merely must cease living together as a husband and wife would for at least six (6) months; however, effectuating this requirement can take place while living under the same roof.
Part One: Child-Related Matters
Changes to Custody and Visitation
Portions of the Act concerned with decision making related to minor children and parenting time also saw significant revision. In addition to codifying numerous case law decisions, the revised IMDMA eliminates a number of key concepts that have served as the bedrock for decisions regarding minor children. Most notably, the revised IMDMA has removed the concepts of “custody” and “visitation” and replaced them with “allocation of parental responsibility” and “allocation of parenting time” respectively.
These changes appear to have been promulgated by Illinois legislators in an effort to make a possibly contentious issue slightly less adversarial. Rather than either parent trying to “win” a custody dispute by being named either the “residential” or “custodial parent,” the revised Act focuses parents’ efforts on implementing a plan that will work to serve the best interests of the child.
What Qualifies as a Parental Responsibility?
Under the old IMDMA, parents were faced with two (2) choices:
- Joint custody, where both parents work together to decide important issues impacting the minor child; or
- Sole custody, where one parent is given all the decision-making power.
Traditionally, under the old Act the “significant issues” subjected to custodial oversight were: educational, religious and health care decisions concerning the minor child. Also, as indicated above, parents were faced with an all or nothing choice when it came to custody.
In the interest of amicability, the Legislature has unbundled these significant decisions so that parents now have greater flexibility in assigning their parental responsibilities. Additionally, the revised Act has added extra-curricular activities to the list of parenting responsibilities that must be allocated.
The New Parenting Plan Provision
The revised IMDMA now requires parents to file a proposed parenting plan, either jointly or separately, within one hundred and twenty (120) days of filing a petition to allocate parental responsibilities. The Act details what a parenting plan must include, such as:
- Which parent will be allocated which significant parental responsibility;
- A provision for the child’s living arrangements and for each parent’s parenting time;
- Transportation arrangements;
- A provision granting each parent access to the minor child’s medical and school records;
- A provision requiring a parent changing his or her residence to notify the other parent at least sixty (60) days prior to the move, if practicable.
If both parents submit parenting plans that differ from the other, then the court will hold an evidentiary hearing to determine how parental responsibilities will be allocated. The court shall consider the parents’ proposed plans in making its decision. This new provision requires parents to consider early on in the litigation process what post-litigation life will look like for the family.
Hopefully, by requiring parents to file parenting plans, they will be able to reach an agreement on some, if not all, of the issues involved with the future parenting of the child before the court has to step in and make its own determination.
New Best Interests Factors in Allocating Decision-Making
As was the case with the previous version of the IMDMA, the guiding principle in any litigation affecting a minor child is “the best interests of the child” standard.
The Legislature added new criteria that can and should be considered when determining the best interests of the child. One previously omitted factor that is now included is “the child’s needs.” 750 ILCS 5/602.5(c)(8). It is surprising this factor was absent from the older version of the statute, as it could be argued that a child’s needs are directly correlated with the child’s best interests.
Another new factor is “the level of each parent’s participation in past significant decision-making with respect to the child.” 750 ILCS 5/602.5(c)(5). With the addition of this factor, the drafters of the revised Act hope to promote one of the many espoused purposes of the revised Act.
The 2016 IMDMA seeks to “mitigate the potential harm to spouses and their children by the process of an action brought under this Act, and protect children from exposure to conflict and violence.” 750 ILCS 5/102.
In looking to past decisions and the roles parents have each played in their child’s life, the court can maximize consistency by allocating decision-making responsibility to the parent who has historically fulfilled that role. This tactic is apparent in the allocation of religious decision-making authority. Absent an agreement by the parties, the court is only allowed to look at the past conduct of the child’s religious upbringing when determining the allocation of religious decision-making in order to ensure consistency going forward.
A final noteworthy addition to the list of factors is “the distance between the parent’s residences, the cost and difficulty of transporting the child, each parent and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement.” 750 ILCS 5/602.5(c)(9). The court is to take the aforementioned factors into consideration when allocating parental responsibilities in a way that minimizes the disruption to a child’s life.
New Best Interest Factors to be Considered in the Allocation of Parenting Time
The list of factors for the court to consider when allocating parenting time (previously referred to as “visitation”) has also been expanded.
The new additions mirror many of the same factors to be in the allocation of decision making authority. This is understandable, as once again the focus in allocating parenting time is the best interests of the child.
A noteworthy addition is “the amount of time each parent spent performing caretaking functions with respect to the child in the 24 months preceding the filing of any petition for allocation of parental responsibilities or, if the child is under 2 years of age since the child’s birth.” 750 ILCS 5/602.7(b)(3). Again, the Legislature directs focus to the parents’ past actions when allocating parenting time in the future, undoubtedly to maintain stability in the child’s life.
Another factor the court shall consider is “the willingness and ability of each parent to place the needs of the child ahead of his or her own needs.” 750 ILCS 5/602.7(b)(12). This new factor is also an important shield in protecting the best interests of the child from parents who lose sight of that during the course of litigation.
Relocation (Formerly Known As Removal) and the Minor Child
One of the biggest changes to the IMDMA is the Legislature’s focus on the distance between parents’ residences when allocating parenting time and deciding a parent’s request to relocate.
The revised IMDMA significantly curtails a parent’s ability to move anywhere he or she chooses in Illinois. When parent seeks to relocate with a minor child, he or she must provide written notice to the other parent. If the non-relocating parent objects to the relocation, then the matter will have to be submitted to the court for adjudication.
As an added restriction, a parent with equal or a majority of the parenting time who lives within the following counties: Cook, DuPage, Kane, Lake, McHenry, or Will, is prohibited from moving more than twenty-five (25) miles from his or her current residence without permission from the court or absent agreement of the parties. Any parent with equal or the majority of parenting time who resides in a county not listed above may not move more than fifty (50) miles from his or her current residence without permission from the court or absent agreement of the parties.
The new mileage limits prevent potential abuse by a parent who seeks to interfere with the other parent’s parenting time through distance.
Unlike the old Act, which required the court’s permission to remove a child across state lines, the revised Act does not prohibit moving to another state. Thus, if a parent lives within twenty-five (25) miles of another state, he or she may not need the court’s permission to move there with the child, as long as the new residence is within twenty-five (25) miles of the former residence. However, in order to prevent parents from trying to evade Illinois’ jurisdiction, the Act provides that Illinois will still be considered the home state of the child, regardless of the child’s new residence.
New Rights for Non-Parents
As the traditional nuclear family of mother, father, and child evolves, the revised Act removes some of the hurdles for family members that do not fit the “traditional” family mold, such as stepparents.
The revised IMDMA gives step-parents the ability to petition to court for an allocation of parental responsibilities and parenting time. The old requirements that:
- The child be at least twelve (12) years old; and
- The residential parent and step-parent be married for at least five (5) years have been removed.
Now, the step-parent must satisfy four (4) requirements to be allocated parental responsibilities or parenting time. The four (4) requirements are:
- The parent having the majority of the parenting time is deceased or disabled and cannot perform the duties of a parent to the child;
- The step-parent provided for the care, control, and welfare of the child prior to the initiation of proceeding for allocation of parental responsibilities;
- The child’s wishes to live with the step-parent; and
- It is alleged to be in the best interest and welfare of the child to live with the step-parent (to be argued in conjunction with the rest of the Act). 750 ILCS 5/601.2(b)(4).
Changes to Child Support
Little was done to amend the child support section of the IMDMA (750 ILCS 5/505). However, the Legislature now includes student loan payments as an allowable deduction when determining an obligor’s net income for child support purposes. Additionally, if a parent with a child support obligation changes or loses his or her job, they must notify both the Clerk of the Circuit Court and the other parent within ten (10) days of that occurrence.
Educational Expenses for a Non-Minor Child
The revised IMDMA has added specificity regarding the payment of educational expenses that the old Act lacked. For example, the revised Act clarifies how long a parent may be legally obligated to pay for a non-minor child’s educational expenses (such as college). The new Act states that a parent will not be required to pay for their adult child’s educational expenses beyond “…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). Thus, if a student has to leave school for a legitimate reason, a parent may be responsible to pay educational expenses beyond their 23rd birthday, but NEVER past the student’s 25th birthday. Examples of educational expenses that qualify under this section of the Act include, but are not limited to: tuition, fees, the actual costs of the child’s medical expenses, housing, reasonable living expenses, books and school supplies.
Further, the revised Act caps the amount a parent is required to contribute per child to the cost of attendance and housing at the University of Illinois at Urbana-Champaign. The revised Act also places new responsibility on the student receiving support, as subsection (g) of this Section requires the student to maintain at least a “C” grade point average to retain eligibility for contribution to educational expenses from his or her parents. Additionally, the court may now require both parents to complete a Free Application for Federal Student Aid (FAFSA) and other educational financial aid applications, regardless of whether they have been ordered to contribute to educational expenses.
Changes in Support for Non-Minor Children with a Disability
Previously, the IMDMA addressed the matter of support for disabled non-minor children in the same section as educational expenses for non-minor children. The revised Act has now deduced these two concepts to their own sections, providing additional details and guidance with regard to both. The revised Act defines a “disabled individual” as, “an individual who has a physical or mental impairment that substantially limits a major life activity, has a record of such an impairment, or is regarded as having such an impairment.” 750 ILCS 5/513.5(c). It also directs the court to look at the “present and future [emphasis added] financial resources of both parties to meet their needs, including but not limited to savings for retirement.” 750 ILCS 5/513.5 (b)(1). The old Act merely stated the court shall consider “the financial resources of both parents.”
To make a legitimate claim for support for a disabled non-minor child, the child must suffer from the disability at the time the court is either determining child support or dividing the marital estate. The request for educational expenses (beyond minority) is an exception to this requirement. The statute does not provide the court with the ability to assign support for a non-minor child who becomes disabled after child support has been set or a marital estate has been divided. If the court decides that a disabled non-minor child is entitled to support, it will consider the financial capabilities of the parents and non-minor child. There is no age limit on support and educational expenses for a non-minor child with a disability (in contrast to the parameters set forth in 750 ILCS 5/513(a).
Part Two: Financial Matters
Changes to Property Provisions
The Illinois Marriage and Dissolution of Marriage Act’s overhaul concerning property rights and property distribution are not as expansive or drastic as the revisions to the statutes impacting children; however, there are some noteworthy changes. First, the revised Act specifically provides that “debts and other obligations” shall be considered when distributing the marital estate. In practice, the court has allocated marital debt as a component of the marital estate for some time; this change merely codifies that.
Another change worth noting is how and when a court values the marital estate. The revised IMDMA directs the court is to use the “fair market value” method when valuing a piece of property. The old version of the IMDMA directed the court to ascertain the value of the marital estate at the time of trial. The revised Act specifies that valuation will be determined as of the date of trial unless the parties agree upon a valuation date or the court designates another date. Selection of a valuation date can drastically cut down on the time and cost of continually updating the value of a piece of property if the parties are entangled in prolonged litigation. A final notable change to the property section of the revised IMDMA is that the court now has the ability to consult with its own independent financial expert to assist in valuing property similar to the way they may rely on a parenting responsibility expert.
Changes to Maintenance Provision
Modifications to the IMDMA’s maintenance provisions mainly clarify the current law rather than implementing any groundbreaking changes. In determining if a maintenance award is appropriate, the court is now guided to look at the “realistic present and future earning capacities [of the parties]”, the financial obligations imposed on the parties as the result of the dissolution of marriage, and any impairment of the realistic present or future earning capacity of the party against whom maintenance is sought.” 750 ILCS 5/504. These additions seem to indicate that the drafters understood and appreciated that a party’s financial situation may worsen after divorce.
If a court determines that a maintenance award is appropriate, the court may award maintenance pursuant to the formula prescribed in the statute or deviate from the formula if its findings support that decision. In determining the duration of a maintenance award, the court is to look at the length of marriage. The revised Act has clarified how to calculate this. The length of the marriage is defined as the date of marriage through the date of the filing of a petition for dissolution of marriage.
Temporary Relief and a New Financial Affidavit
As in the old Act, the revised IMDMA permits either party to petition the court for temporary financial relief during the proceedings. If requesting financial relief, a party must complete a financial affidavit and tender it to the opposing party, with supporting documentation (as specified by the Act). Historically, each county has utilized its own financial affidavit form. The revised IMDMA provides that the State of Illinois will now have a universal affidavit, to be used in every county. In addition to creating a universal form, the revised IMDMA also sets forth more stringent requirements regarding the completion of an affidavit. Litigants should be mindful of ensuring that their completed financial affidavits are as accurate and thorough as possible. If a party believes there is a discrepancy between the opposing party’s affidavit and the supporting documentation, he or she may petition the court to hold a hearing to determine whether such a discrepancy exists. If upon the conclusion of said hearing the court determines that the offending party either intentionally or recklessly filed an inaccurate financial affidavit that party may face, “significant penalties and sanctions including but not limited to, costs and attorney’s fees.” 750 ILCS 5/501 (a)(1).
Upon the service of a completed affidavit and supporting documentation, the court may make a temporary support determination on a summary basis. To determine a matter on a summary basis means the court may do so without evidence beyond the parties’ financial affidavits and supporting documentation. The court will only hold an evidentiary hearing if a party can show good cause as to why such is necessary. These revisions are undoubtedly meant to expedite the temporary relief process to ensure the continued progress of a case.
Though it may take some time for the legal community to adjust to the changes to the new Illinois Marriage and Dissolution of Marriage Act, many of the changes have the potential to create more stability for families once they are out of court. Revisions such as the allocation of parental responsibility, mandating parents to submit a parenting plan, and adding factors to consider in determining the best interests of the child stand to benefit families by forcing parents to think about crucial matters from the beginning of a case. The revisions to the property and maintenance provisions also require litigants to think about post-divorce life earlier in the litigation process. It is the hope that the new methods and tools the court, parties, and their attorneys now have at their disposal will help streamline cases to a resolution that will be fairer in its finality.