Summary Of Certain Nuances In The New Divorce Act
Published in Chicago Lawyer Magazine, December 2015
by Daniel R. Stefani
As a follow up to my colleague Judge Celia Gamrath’s last article, below is a summary of certain changes in the new Divorce Act (“Act”) which will take effect on January 1, 2016. This Act is a product of the hard work of the Illinois Family Law Study Committee which was created in 2008. The Illinois Family Law Study Committee was a bi-partisan committee of experienced family law practitioners, Judges and Legislators in the State appointed by House Majority and Minority leaders, the Illinois Supreme Court and the Illinois Child Support Advisory Committee. My partner André Katz was appointed by House Speaker Michael Madigan as Chairman of the Committee.
Section 5/801 of the Act sets forth its application which is effective January 1, 2016. The Act applies to both new and pending proceedings, even if commenced prior to the effective date of the Act, with respect to issues on which a judgment has not been entered. The Act also applies to all proceedings commenced after its effective date for the modification of a judgment or order entered prior to the effective date of the Act. For cases where an appeal was pending or a new trial date was ordered prior to the effective date of the Act, the law in effect at the time of the order sustaining the appeal or a new trial governs the appeal, new trial or any subsequent trial or appeal. As it relates to custody judgments, the Act specifically states that it is not the intent of the General Assembly to modify or change the rights arising out of any order entered concerning custody or visitation prior to the effective date of the Act.
The Act also abolishes certain causes of action such as breach of promise to marry, alienation of affections and criminal conversation. These “heart balm” actions are abolished to promote the recognition that amicable settlement of domestic relation matters are beneficial to families. However, litigants may still proceed under these causes of action based on conduct that occurred prior to January 1, 2016.
The Act contains a significant deviation from the prior statute and case law relating to the issues of bifurcation of divorce judgments and valuations of assets in a divorce action. Specifically, the Act now allows Courts to bifurcate a judgment for dissolution of marriage and dissolve the bonds of marriage immediately with a reservation of the other issues by agreement of the parties. The prior law limited bifurcation to only certain limited circumstances, even if both parties agreed to bifurcate.
As it relates to valuation issues, the Act now allows the Court to use greater discretion as to the date of valuation of the parties’ assets. The old law provided for the valuation to be determined as of the date of trial or some other date as close to the date of trial as is practicable. Now the Act will provide for the Court to have discretion to use the date of trial or such other date as agreed upon by the parties or ordered by the Court within its discretion, for purposes of determining the value of assets or property.
Now, in certain circumstances, the Court is able to set valuation dates well in advance of the ultimate trial in the matter. This will allow Courts to help deter and remedy the common problem of one side of the divorce action embarking on a strategy to delay the proceedings so as to unfairly allow the accrual of marital property when the breadwinning spouse has an unusually high level of income. This change will promote judicial economy by reducing the temptation for attorneys to create needless litigation and motion practice, as well as countless motions to continue the trial in an effort to gain an unfair economic advantage.
In a similar vein, the Act tightens the timing in which Courts must render judgments for divorce. The Act requires the Court to enter a Judgment for Dissolution of Marriage within 60 days of the closing of proofs, unless the Court enters an order specifying good cause, in which case the Court shall have an additional 30 days. This is an important change since cases in some instances would linger on for many months before entry of judgment, leading to stale valuations and other inequities.
As it relates to maintenance, the Act provides that the Court may consider “all sources of public and private income including, without limitation, disability and retirement income” as a factor when determining maintenance. The prior case law precluded the Court from considering any party’s Social Security benefits. Now the Court may consider either party’s Social Security benefits when awarding maintenance.
As it relates to child support, the Act contains very few changes. There may be significant changes on the horizon, but they will be subject to separate legislative action. Specifically, there may be an income sharing model of child support based on net income coming down the pike. For now, the Act will include within the definition of “net income” for calculation of child support, a deduction for student loan payments of an obligor.