“We Need to Talk…”: Possible Changes in Illinois Divorce Law

Upcoming Changes to Illinois Divorce Law?

After years of research, time, and money spent by the Illinois Family Law Study Commission, numerous changes have been proposed to be made to the Illinois Marriage and Dissolution of Marriage Act. (735 ILCS 5/100 et. al.).  This Act, passed over 35 years ago, is in a state of flux in which the legislative and judicial systems are attempting to change the existing law.  These changes are in an effort to have the law function and address the modern families.

The five areas to be addressed are:

  • Change Illinois to allow for “no grounds” divorce.
  • Judgments for Divorce will be issued within 90 days of filing.
  • Move away from the percentage formula for child support and towards shared income approach.
  • Maintenance awards will be explained in writing.
  • Reallocation of parental time and responsibilities.

 

No Grounds Needed for Divorce

Illinois is not a clear “no fault” divorce state.  Currently, the couple has to live separate and apart for a period of two (2) years before asserting irreconcilable differences for divorce.  That period can be shortened to 6 months if both of the parties sign a waiver.

Illinois does not require the parties to live in separate residences. The  Kenik case (536 N.E.2d 982 (1st Dist., 2d Div. 1989), delineates circumstances that can account for “separate and apart” even while living in the same residence.  I would recommend consulting an attorney to see if your situation conforms to the court’s ruling in Kenik.

The proposed change would be to convert Illinois to a “no grounds” state.  This would do away with the necessity to allege grounds in the petition for dissolution and would amend or eliminate the waiting periods.

 

90 Day Judgments

Another proposed change would include that all judgments would be issued within 60 days after the close of proofs in the proceeding.  There is a provision that would allow for a 30 day extension if the court issues a statement citing the reason for the delay.

What this change allows for is twofold.  First, it would allow the parties to move forward with their lives or with an appeal.  Second, it can help guard assets that can dissipate over time given the fact that some divorces currently can take years conclude.

 

Child Support and Shared Income

This change would do away with the strict percentage scales according to the number of children and gross income.  It would have the courts consider things such as:  amount of non-custodial time spent with the child, level of income and assets of the other parent, and who should pay and how much.

Although both major bills that were drafted by the Illinois Family-Law Study Committee HB 6191 and HB 6192 were introduced last year without being ratified, the court system does seem to be implementing this change.  A recent decision in, In re the Marriage of Turk, 2013 IL App (1st) 122486 (5th Div.), the Court of Appeals found that under certain circumstances, child support could be paid to the noncustodial parent.

 

Maintenance Awards in Writing

Under the current law, all that is required from a judge ruling that maintenance (alimony) is awarded “based on all the facts and circumstances”.   The proposed change would force judges to put these rulings in writing.  With the rulings for maintenance in writing, they would be appealable and presumably would address the factors examined by the court in coming to a decision.  Another problem that revisions seek to address is making sure that the award does not outlive the need for such payments.  A second goal of this revision would be to allow each party to change or prevent modification because of a change in circumstances.

Custody Hybrid

The major change to custody under the new proposal would be to move away from the traditional every other weekend and shared holiday approach.  Under the new approach, the determination of what is in the child’s best interest would be a minimum 35% time spent with each parent.  This could account for expanded weekends for the nonresidential parent.  Further, the 35% presumption can be overcome by a preponderance of the evidence.

 

Conclusion

The two bills containing these changes were introduced in 2012 (HB 6192 and HB 6191).   Unfortunately, both bills on January 8, 2013, were adjourned without a further date set or Sine Die.

However, as evidenced by the Turk case, some courts are beginning to utilize these proposals in their rulings.  The attitudes, opinions, and mores of divorce and child custody have changed significantly in the past 35 years and the Illinois Marriage and Dissolution of Marriage act should reflect those changes.  Consideration should be given to the ever evolving “American Family” and the law should has to evolve to remain relevant to better serve the people of Illinois.

 

If you have a question about this, or any legal situation in which you may need assistance please contact Kesler, Nelson, Garman, Brougher & Townsley, P.C. at 217.446.0880 or online at www.danvillelawyers.com for a free consultation.