Illinois Rewrites Divorce and Custody Laws

Illinois has recently enacted a major overhaul of the Illinois Marriage and Dissolution of Marriage Act. These new laws (P.A. 99-0090) will become effective as of January 1, 2016.

A few of the most significant changes include:

1. Abolishing actions for alienation of affections and breach of promise to marry.
2. Establishing no-fault, irreconcilable differences as the only ground needed to divorce, and eliminating all other fault grounds, e.g,. mental cruelty, adultery, etc. If the parties have lived separate and apart for at least six months, there is an irrebuttable presumption that irreconcilable differences exist. 
3. Setting a fair market value standard to determine the value of assets and property, and permitting the court to seek the advice of financial experts.
4. Clarifying the maintenance factors and guidelines.
5. Capping obligations for college tuition and housing expenses to similar amounts charged by the University of Illinois at Urbana-Champaign, and requiring the student to maintain a cumulative “C” grade point average.
6. Specially identifying support for a non-minor child with a disability.
7. Redefining custody to allocation of parental responsibilities and parenting time. 
8. Changing interstate removal to relocation based on distance. 

Perhaps the most substantial changes are those made to custody and visitation. Those terms are abolished in favor of an “allocation of significant decision-making responsibilities and parenting time.” The court must allocate to one or both parents the significant decision-making responsibility for each significant issue affecting the child, including but not limited to:

• Education, including the choice of schools and tutors.
• Health, including decisions and treatments related to the medical, dental, and psychological needs of the child.
• Religion, assuming there is an agreement by the parents or past conduct as to the child’s religious upbringing.
• Extracurricular activities.

These responsibilities shall be allocated by agreement of the parents or determined by the court based on the best interests of the child.  Similarly, parenting time shall be allocated according to the best interests of the child. In doing so, the court may consider, among other factors, the amount of time each parent spent performing care-taking functions in the 24 months preceding the filing, or if the child is under 2 years of age, since birth. 

All parents must submit a proposed parenting plan to the court, either jointly or separately. Mediation must be ordered to assist the parties with their parenting plan if they disagree. The parenting plan must set forth at a minimum:

1. Allocation of significant decision-making responsibilities.
2. Provisions for the child’s living arrangements and each parent’s parenting time.
3. A mediation provision.
4. Each parent’s right of access to medical, dental, and psychological records, child care records, and school and extracurricular records, reports and schedules. 
5. Designate the parent who will be denominated as the parent with the majority of parenting time solely for purposes of state and Federal statutes requiring a custody designation.
6. Designate the child’s residential address for school purposes only.
7. State each parent’s residence address and phone number, and place of employment.
8. Requiring a parent changing his or her residence to provide prior written notice.
9. Provide for emergency notifications.
10. Make transportation arrangements.
11. Provisions for notice of significant child-related issues.
12. Provisions for communications, including electronic communications, with the child during the other parent’s parenting time.
13. Provisions for resolving issues arising from a parent’s future relocation.
14. Provisions for future modification of the plan.
15. If appropriate, a right of first refusal.

When parents submit an agreed parenting plan to the court for approval, it will be binding upon the court unless it finds that the agreement is unconscionable. If the court does not approve the parenting plan, then the court may conduct a hearing to determine whether the plan is in the child’s best interests. If parents cannot agree on a parenting plan, then the court must determine a plan which is in the child’s best interests and maximizes the child’s relationship and access to both parents. 

The concept of interstate removal has been expanded to include both in-state and out-of-state “relocations.” A parent intending a relocation is required to give at least 60 days’ written notice to the other parent. What triggers a relocation depends on how far the move is from the child’s current primary residence. For Cook County and the collar counties (DuPage, Kane, Lake, McHenry, and Will), a relocation is defined as a move to a new residence in Illinois that is more than 25 miles from the current residence. For all other counties, a relocation is more than 50 miles from the current residence. For all out-of-state moves, a relocation is triggered if more than 25 miles from the current residence. If, after receiving notice, the non-relocating parent agrees, then the relocation shall be allowed. If the non-relocating parent objects, then the relocating parent must obtain the court’s permission. The court will consider the child’s best interests, including, among others, the history and quality of each parent’s relationship with the child, the educational opportunities for the child, and the possible arrangements for the exercise of parental responsibilities.      

There are also numerous other procedural and substantive changes to Illinois divorce litigation that are not discussed here.  It would be prudent to consult with a lawyer to discuss how these statutory changes might affect your rights and responsibilities.