The Rewrite of the Illinois Marriage and Dissolution of Marriage Act
The overhaul of Illinois’ marriage, divorce and parentage laws was long overdue, as the Illinois Marriage and Dissolution of Marriage Act was enacted in 1977, and the Parentage Act was enacted in 1984.
Society and family dynamics have changed dramatically in the past 35 years. Three decades ago it was still typically the mother’s role to care for the children, while the father provided financial support. Today, in many, if not most families, both parents are employed outside the home, and both share the financial and emotional responsibility of parenting.
In recognition of the dramatic changes in familial societal norms, the Illinois General Assembly created the Illinois Family Law Study Committee (IFLSC) in 2008, and I was appointed by Speaker of the House Michael Madigan as Chairman of the IFLSC. The overall mission of the IFLSC was to re-write the outdated divorce statutes, taking into consideration the diverse perspectives and professional experiences of its members. As of January, 2016, (which apply to new and pending proceedings) here are some of the changes.
There is now only one ground for dissolution-that irreconcilable differences have caused the irretrievable breakdown of the marriage. The previous waiting period of six months (if the parties agree) or two years (if the parties do not agree) has been repealed.
The new law now provides for standardized statewide forms for interim attorneys’ fee award orders, financial affidavits, and parenting plans.
Courts will no longer award “custody” or “visitation” under the law, so that a parent may be allowed to “visit” with his or her child. Rather, courts will allocate “parental responsibilities” (formerly called custody) and “Parenting time” (formerly called visitation.) Decision-making regarding education, healthcare, religion, and extracurricular activities (parental responsibilities) can be shared between both parties or each one assigned solely to one parent.
Other changes include:
“Heart-balm actions” The causes of action commonly known as alienation of affections and breach of promise to marry have been repealed.
Timing for entry of judgments after trial. The new law now requires the court to enter a judgment of dissolution of marriage within 60 days of closing of proofs unless the court enters an order specifying good cause, in which case the court shall have an additional 30 days.
Raising the monetary threshold for a joint petition for simplified dissolution. The thresholds have been increased to allow for inflation for those that qualify to file for a joint petition for simplified dissolution.
Limiting modification of marital settlement agreements. Marital settlement agreements must be in writing, except for good cause shown and with the approval of the court.
Summary hearings for temporary maintenance and temporary child support. Hearings for temporary maintenance and temporary child support may be heard on a summary basis, but an evidentiary hearing may be held for good cause shown.
Specific findings for property allocation. To encourage accountability and better compliance with judgments, courts will be required to provide specific factual findings for property allocations. In addition, it is generally accepted that litigants are more likely to comply with judgments or other orders to the extent they understand the judge’s rationale behind them.
Court-appointed financial experts. The new law gives trial courts discretion to use one of several different dates to determine the value of assets or property to ensure fair treatment of both parties and to adjust for circumstances out of their control. Additionally, the court may appoint and seek the advice of financial experts or other professionals. The use of a court’s witness increases the likelihood of settlement and is likely to minimize the need for retention of multiple experts.
Maintenance guideline formula adjustments. The maintenance guidelines were effective in January 2015 via separate legislation that was not recommended by the Illinois Family Law Study Committee as no economic study had been conducted in support of the same. Nonetheless, additional revisions were made in 2016, including to provide that the court must consider all sources of public and private income, including retirement and disability income – which the court was previously prohibited by caselaw from considering.
Interim post-decree attorneys’ fees. Like temporary support, a petition for temporary attorney’s fees in a post-judgment matter may now be heard on a non-evidentiary, summary basis. In addition, the standardized order makes clear that any award of interim attorneys’ fees is deemed an advance from the marital estate in order to promote transparency and clarity to clients.
Limiting post-high school educational expenses. Under the new law, when the court orders divorced parties to contribute to a child’s college costs, the cost of the same shall be capped at the cost of in-state tuition and fees at the University of Illinois at Urbana – Champaign, except for good cause shown.
New provisions support for a non-minor disabled child. A petition seeking support for a non-minor child with a disability must be made when the child was eligible for either child support or college contribution. In addition, courts may now order the payment of support for a non-minor child with a disability to a special needs trust for the benefit of the child.
Requiring a parenting plan. Both parents, within 120 days after service or filing of a petition for allocation of parental responsibilities, must file with the court a separate or joint proposed parenting plan.
New procedures for relocation with child (formerly known as ‘removal’). A parent who has been allocated a majority of parenting time or equal parenting time may seek to “relocate” with a child. The word “relocate” has replaced the prior term “removal.” The new law provides a procedure for notice and objection of intent to relocate. Specifically, the parent seeking to relocate must provide written notice to the other parent and file the notice with the circuit court clerk and must provide 60 days notice.
P. André Katz was chair of the Illinois Family Law Study Committee. Katz is a principal and the co-Founder of Katz & Stefani.