Rewriting the Divorce Act

Published in Chicago Lawyer Magazine, November 2008
By Daniel Stefani

It has been more than 30 years since the enactment of the Illinois Marriage and Dissolution of Marriage Act. While there have been miscellaneous amendments to the act since then, the Illinois House of Representatives has decided that the act needs a complete review and overhaul. This is especially necessary since the typical American family unit has changed significantly since 1977.

As a result, House Resolution 1101, created by House Speaker Michael Madigan and State Representative John Fritchey, establishes the Illinois Family – Law Study Committee for the purpose of studying and recommending changes to the act.

The chairperson of the committee is my partner, P. Andre Katz. The goal of the committee is to submit its final report to the governor and the House of Representatives. To achieve this end, the committee requires input from the public, the legal community, professional organizations, and other institutions. This input will be considered by the committee, and discussed at three publicly convened meetings over the next few months, with the next meeting in November in Springfield. Meetings in Chicago and Waukegan will follow. I urge all lawyers to submit their comments, thoughts, and (in some cases) personal experiences to the committee at [email protected].

This article is intended to raise awareness to this committee and these meetings, as well as raise some of the key issues to be dealt with at the committee level, and ultimately by the governor and the House of Representatives.

One of the key financial issues is how to equitably divide the responsibility between parents for the support and education of their minor children. Currently, child support is primarily determined by the court looking at the support payer’s net income and applying the statutory guidelines (20 percent of net income for one child, 28 percent for two children, 32 percent for three children, and gradually increasing to 50 percent of net income for six or more minor children).

The guidelines are applied unless the court makes a finding that the guidelines would be inappropriate, after considering other factors like the financial resources and needs of the child and the custodial parent; the standard of living the child would have enjoyed had the marriage not been dissolved; the physical and emotional condition of the child; the child’s educational needs; and the financial resources and needs of the non-custodial parent.

In a majority of cases, courts apply the guidelines with very little recognition of these other factors, including the financial resources and needs of the support payee. Many other states have kept up with the increase in dual-income families by instituting an income-sharing model that considers the payee spouse’s income dollar-for-dollar instead of being one general factor to consider.

The theory is that this model more equitably distributes both parents’ obligation to contribute to the support and education of the minor children. This approach seems to be the trend in other states, with the courts quantifying the net after-tax income from both spouses available to support the children and thereafter equitably dividing it through guidelines to maximize the benefit to the minor children.

Other issues are whether to amend the waiting period for no-fault divorce and the recognition of fault-based grounds for a divorce.

Illinois is a modified no-fault state because, in 1977, when no-fault divorce became law, public policy dictated that the parties had to live “separate and apart” for at least two years to obtain a no-fault divorce, unless the parties agreed to waive it, in which case the requirement is still six months. While “separate and apart” does not necessarily mean living in separate residences, this requirement still causes a potential delay in litigation. This requirement of six months living “separate and apart” results in the litigants having to sometimes still use fault-based grounds like extreme and repeated mental cruelty, adultery, and the like. These fault-based grounds are archaic and sometimes cause the litigation to get side-tracked from issues relating to finances, where marital misconduct is irrelevant.

Should the act require the appointment by the court of a business valuation expert before allowing either party to hire their own? Valuation issues and custody issues are the most litigated issues in our area and this could create a more streamlined and efficient result.

While controversial, the committee will likely look at the issue of the definition of marriage. The act provides that a valid marriage in Illinois is a marriage between a man and a woman properly licensed and registered, and specifically states that a marriage between two individuals of the same sex is prohibited. There should be much debate on whether there should be a civil union law and whether the act would apply to dissolving civil unions as well. Additionally, there are no property rights derived from anyone who cohabits and is not married, regardless of sexual orientation. This is another issue to debate.

There are a myriad of issues to be debated at the committee level. Unlike other laws, much of the public has an interest in the result of the committee’s work since the divorce rate remains high in Illinois.