In 2008, the Illinois House of Representatives passed House Resolution 1101 and initiated a series of events that would profoundly change Illinois family law in ways that had not been achieved since 1977. House Resolution 1101 effectively created the Illinois Family-Law Study Committee (the Committee) and tasked the Committee with studying and proposing changes to the Illinois Marriage and Dissolution of Marriage Act (IMDMA).1 In passing the resolution, the House decided that
“…It [was] time for a thorough and comprehensive review of the Act,” as “…It [had] been more than 30 years since the enactment” of the law, “…American society and law [had] undergone significant and numerous changes particularly affecting families and family law,” and “…The General Assembly [had] dealt with these changes only by amending individual sections of the Act without regard to the overall statutory scheme of the Act…” 2
In other words, the Committee was charged with proposing a new law. The Committee, comprised of members appointed by the Majority and Minority political parties, the Supreme Court, and the Illinois Child Support Advisory Committee, worked for more than four years to create House Bill 1452 (HB 1452), which was filed in early 2013.3
HB 1452 has the potential to radically change how lawyers and laypeople think of and approach divorce and family law in Illinois.4 The explicit intent of the changes are to safeguard family relationships,5 protect children from “exposure to conflict and violence,”6 ensure predictable decision-making for childcare and allocation of parenting time,7 avoid prolonged litigation, 8 and to continue existing parent-child relationships.9 In addition to these concerns, the bill revises a law that is more than thirty years old, keeping in mind on societal changes to gender roles and family structures.
The IMDMA as we know it today went into effect in 1977. While the law has been amended many times since then, each amendment addressed only a piece of the law; none of the amendments sought to transform the law as a whole in the way HB 1452 does. The most recent amendment was passed in November 2013 with the enactment of The Religious Freedom and Marriage Fairness Act, recognizing gay marriage in Illinois.10
At its core, HB 1452 is an attempt to bring family law into the 21st Century and make it a more equitable representation of how families are actually structured.11 The typical family in 1977 is vastly different than the typical family today: women are going to college at higher rates,12 working more than their 1977 counterparts,13 and making more money.14 While moms are taking on more responsibility in the workplace, studies show that dads are taking on more responsibility in the home than in generations past.15
Dads are planning social engagements for their children, doing laundry, and grocery shopping for their families.16
Dads are generally spending more time caring for children, approximately 6.5 hours per week in 2000, compared to only 2.6 hours in 1965.17 However, alongside this trend of more time spent with children is a trend of more children living apart from their fathers due to declining marriage rates and increasing births out-of-wedlock.18 HB 1452 was drafted with these societal changes in mind, attempting to create a more equal allocation of both caretaking responsibilities and financial support to both parents.
While HB 1452 is considered by many to be a complete overhaul of the IMDMA, perhaps the most noteworthy changes are the elimination of grounds for divorce, a 90-day deadline for courts to issue judgments in divorce cases, written explanations for maintenance awards, and the reallocation of parental time and responsibilities.19 Not only are these changes important to the current families in Illinois, but with the recent enactment of The Religious Freedom and Marriage Fairness Act allowing for gay marriage in Illinois,20 HB 1452 also has the potential to affect thousands of new families that do not fit traditional definitions.
Elimination of Grounds. Perhaps most noticeably missing from HB 1452 are grounds for divorce. Keeping with its goal of preserving family relationships and minimizing conflict, HB 1452 removes grounds such as mental or physical cruelty and abandonment completely. Instead, HB 1452 only requires that married couples be separated for six months before a judgment for divorce is entered.21 This period can begin before or after filing for dissolution, and once the six-month period has past, HB 1452 creates an irrefutable presumption that irreconcilable differences exist.22
By eliminating grounds for divorce, HB 1452 essentially transforms all divorces in Illinois into no-fault divorces. HB 1452 follows in line with the trend that began when California became the first state to allow no-fault divorce in 1969. If adopted, Illinois will join 17 other states that currently offer no-fault as the sole ground for divorce.23
While some argue that no-fault divorces simply lead to more divorces,24 some argue that divorce rates have actually declined since the advent of no-fault divorces.25 Additionally, some studies show that the availability of no-fault divorces has led to reduced suicide rates among wives and decreased domestic violence by as much as thirty percent.26
90-Day Judgment Deadline for Judges. Again in line with its goal of minimizing conflict, HB 1452 seeks to shorten divorce battles by requiring judges to enter divorce judgments within 90 days of closing of proofs.27 Section 413(a) of the bill gives judges a 60-day deadline in which to enter a divorce judgment.28 Judges can seek a 30-day extension if the court can specify good cause for the delay.29
This type of deadline is a completely new addition to the IMDMA. The Committee cites delays in judgments, sometimes up to a year or longer, as the source of problems regarding maintenance and child support payments.30
A delayed judgment also leads to a delayed appeal and to additional work for lawyers and judges as parties’ assets and circumstances change in the interim.31 While some judges may oppose such a deadline, this requirement attempts to move cases off of crowded dockets, with the hope that couples going through an already stressful divorce will have to wait weeks instead of months or even years for a final resolution to their court battles.
Written Explanations for Parenting Allocations and Maintenance Awards. HB 1452 gives judges even more homework, requiring the court to provide written findings in certain circumstances. When refusing to approve a parenting plan,32 selecting a plan that limits a child’s access to one parent or the other,33 or allocating maintenance,34 HB 1452 requires the court to enter a written explanation for its decision. The Committee hopes that written findings will provide clients with peace of mind while also assisting at the appellate level.35 For example, current case law allows judges to award maintenance “based on all of the facts and circumstances,” without providing a specific written explanation.36 These unspecific judgments create problems at the appellate level, where it may not be so clear how the trial court calculated maintenance and what external factors it considered.37 They also create problems where parties need to modify a maintenance award. When maintenance awards outlive a spouse’s actual need for maintenance, for example, written findings will go a long way to assist in modifying the maintenance award.38 These provisions may require more work from judges, but written findings provide clients with an explanation for divorce judgments, and provide appellate courts with a written record when an issue is brought up on appeal.
Reallocation of Parenting Responsibilities. What many view as the most drastic and controversial changes to the IMDMA contained in HB 1452 relate directly to family relationships and the issues of custody and visitation. HB 1452 replaces standard divorce terminology relating to children and transforms the way parties and attorneys will approach parenting agreements and issues of custody. First and foremost, HB 1452 replaces the term “custody” with terms such as “parenting time,” “significant decision-making,” and “caretaking functions.”39 “Parenting time” includes time a parent is physically with the child, providing caretaking functions and non-significant decision-making.40 While “caretaking functions” include providing for a child’s nutritional, developmental, and other immediate needs, “significant decision-making” covers issues of longterm importance to a child’s life.41 The Committee created these terms in order to reflect changing family structures and facilitate shared parenting. For example, if one parent is a physician but is also the non-custodial parent, the new law would allow allocation of certain significant decisionmaking, such has health decisions, to that parent.
HB 1452 also adds a new section, Section 602.10, Parenting Plan.42 This section requires parties to file a proposed parenting plan within 90 days of filing a Petition for Allocation of Parenting Responsibilities.43 Parents are given freedom to agree to a parenting plan allocating parenting time and significant decision-making responsibilities at any time. However, where parents cannot agree on a parenting plan, the court is directed to allocate parenting responsibilities according to the best interests of the child.44 Listed in the purposes of the Act, HB 1452 encourages involvement of both parents and “expressly finds to be relevant, proximity to, and frequent contact with, both parents promotes healthy development of children.”45 Originally, HB 1452 contained a rebuttable presumption for parenting time where parents could not agree on a parenting time. It stated that an award of no less than 35% residential parenting time to each parent was presumed in the best interest of the child.46
This presumption has been eliminated as of more recent amendments to the bill filed in March and April of 2014.
For purposes of allocating significant decision-making responsibilities and parenting time, HB 1452 requires the court to consider, among other factors, the wishes of the child and parent(s); the child’s adjustment to his or her home, school, and community; the distances between the parents’ residences, cost and difficulty of transporting the child; the level of conflict among the parties; any history of violence in the family; interactions between child and parents; the ability of the parents to cooperate and put the child’s needs before their own; and past participation of the parents in significant decision-making.47
In addition to these changes, HB 1452 repeals several sections of the current law, including Section 607, Visitation, instead adding other provisions such as Section 602.5, Allocation of Parenting Responsibilities48 and Section 602.9 Visitation by Certain Non-Parents. Section 602.9 creates a presumption in favor of a fit parent’s decisions regarding grandparent, great-grandparent, sibling, or step-parent visitation.49 Additionally, this section gives grandparents, great-grandparents, and siblings of a minor child, age one year or older, standing to petition for visitation and electronic communication if certain conditions are met.50 These individuals have standing under the current IMDMA, under Section 607 Visitation.51 HB 1452 addresses visitation rights grandparents, siblings, and other non-parents separately and gives courts additional factors to consider when determining visitation of a non-parent. These changes to the allocation of parenting responsibilities mark a shift in Illinois family law toward a shared-parenting model. Not only does HB 1452 transform the confrontational terminology of divorce into something more neutral, but it also encourages cooperation and involvement of both parents. If it adopts HB 1452, Illinois would join a list of states in the growing trend toward shared parenting.52 Groups in support of shared parenting argue that children benefit from the involvement of both parents, and where parents are willing and able to parent their children, the law should allow them to do so.53 Others argue that courts should not be bound by presumptions in the law, but instead should consider the individual circumstances of each family in order to determine whether an equal allocation of parenting time is in fact in the child’s best interest.54
Conclusion and Future of Family Law in Illinois. The Illinois Family-Law Study Committee expects HB 1452 to move through the Illinois Legislature and hopes it will pass sometime in 2014. As this article went to press, HB 1452 had passed through the Illinois House and arrived in the Senate on April 10, 2014.55 In the meantime, some Illinois legislators seek to change family law in Illinois by filing several other bills, each which addresses only a piece of the IMDMA as it currently exists. House Bill 5425 (HB 5425), filed on February 11, 2014, addresses the issue of parenting time by creating a presumption for equal parenting time and requiring courts to allocate no less than 35 percent parenting time to a non-custodial parent where the court finds it is not in the child’s best interest to have equal parenting time.56 However, HB 5425 allows a non-custodial parent to waive his or her right to the minimum 35 percent residential time per week.57 HB 5425 was referred to the Rules Committee in April 2014.
Senate Bill 3231 (SB 3231), also filed on February 11, 2014, amends the section of the IMDMA dealing with maintenance, requiring courts to first determine whether a maintenance award is appropriate58 and giving courts explicit ways in which to calculate maintenance awards.59
SB 3231 also requires written explanations for maintenance awards.60 Just as the original IMDMA did when it was passed in 1977, HB 1452 stands to change the course of family law in Illinois for years to come and may even influence laws in other states.61 As Illinois prepares to move towards this conflict-free utopia and divorce lawyers and judges prepare to adapt to yet another statutory change, it is worth remembering that HB 1452 will affect real families in very real ways. Understanding these changes is the first step toward helping clients through the difficult process of divorce.62
1 See H.R. 1101, 2008 Leg., 95th Gen. Assemb., Reg. Sess. (Ill.2008), available at http://www.ilga.gov/legislation/fulltext.asp?DocName=&SessionId=51&GA=95& DocTypeId=HR&DocNum=1101&GAID=9&LegID=38386&SpecSess=&Session=
3 HB 1452 had a former life as HB 6192, filed in conjunction with the re-write to the Illinois Parentage Act in 2012 in an attempt to put the proposed laws in the public eye. See Adam W. Lasker, Lawpulse: Is a Family-law Overhaul on the Way?, 100 Ill. B.J. 458 (2012), available at http://www.isba.org/ibj/2012/09/lawpulse/isafamilylawoverhaulontheway. See also H.B. 6192, 97th Gen.Assemb., Reg. Sess. (Ill. 2012) available at http://ilga.gov/legislation/billstatus.asp?DocNum=6192&GAID=11&GA=97&Doc-TypeID=HB&LegID=67552&SessionID=84.
4 Adam W. Lasker, Lawpulse: Is a Family-law Overhaul on the Way?, 100 Ill.B.J. 458 (2012), available at http://www.isba.org/ibj/2012/09/lawpulse/isafamilylawoverhaulontheway.
5 See H.B. 1452 §102, 98th Gen. Assemb., Reg. Sess. (Ill. 2013) available at http://ilga.gov/legislation/98/HB/09800HB1452ham002.htm.
9 H.B. 1452 § 107(D), 98th Gen. Assemb., Reg. Sess. (Ill. 2013) available at http://ilga.gov/legislation/98/HB/09800HB1452ham002.htm
10 See 750 ILCS 5/201. Full text of the Act is available at http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=098-0597.
11 André Katz, Chair of the Illinois Family-Law Study Committee.
12 37 percent of women ages 25 to 64 hold college degrees today, as opposed to only 11 percent in 1970. U.S. Bureau of Labor Statistics, Women in the Labor Force: A Databook, BLS Reports 2 (Feb. 2013), available at http://www.bls.gov/cps/wlf-databook-2012.pdf.
13 Id. at 3. In 2010, couples in which only the husband worked represented only 19 percent of married-couple families in the United States, as opposed to 36 percent in 1967. Id.
14 While women earned only 62 percent of what men earned in 1979, today this number is around 81 percent. U.S. Bureau of Labor Statistics, Highlights of Women’s Earnings in 2012, BLS Reports 1 (Oct. 2013), available at http://www.bls.gov/cps/cpswom2012.pdf. As a result, women’s earnings now make up more of a family’s income, accounting for 38 percent as opposed to 27 percent in 1970. U.S. Bureau of Labor Statistics, Women in the Labor Force: A Databook, BLS Reports 3 (Feb. 2013), available at http://www.bls.gov/cps/wlf-databook-2012.pdf.
15 In 2011, 54 percent of dads reported changes in parents’ roles: more moms are working and dads are more involved in their children’s lives. Lisa Belkin, Fathers More Active, and More Absent, NY Times (Jun 17, 2011, 11:32am) http://parenting.blogs.nytimes.com/2011/06/17/fathers-more-active-and-more-absent/?_r=0
17 Gretchen Livingston & Kim Parker, A Tale of Two Fathers: More Are Active, but More Are Absent, Pew Research Social & Demographic Trends (Jun. 15, 2011) http://www.pewsocialtrends.org/2011/06/15/a-tale-of-two-fathers/.
18 Id. Today, 46 percent of fathers report at least one child born out of wedlock, 31 percent report that all of their children were born out of wedlock, and 17 percent of men with biological children have fathered those children with more than one woman. Id.
19 Lasker, supra note 4.
20 Monique Clark, Quinn Signs Illinois Gay Marriage Bill, Chicago Tribune, Nov. 20, 2013, http://articles.chicagotribune.com/2013-11-20/news/chi-illinois-gay-marriage-bill-signing-20131120_1_civil-unions-gay-marriage-gay-rights. See also 750 ILCS5/201 available at http://www.ilga.gov/legislation/fulltextasp?DocName=&SessionId=85%20&GA=98&DocTypeId=SB&DocNum=
21 H.B. 1452 § 401(a-5), 98th Gen. Assemb., Reg. Sess. (Ill. 2013) available at http://ilga.gov/legislation/98/HB/09800HB1452ham002.htm.
23 Among the others are Arizona, California, Colorado, District of Columbia, Florida, Hawaii, Iowa, Kentucky, Michigan, Minnesota, Missouri, Montana, Nebraska, Oregon, Tennessee, Washington, and Wisconsin. See American Bar Association, Family Law in the Fifty States, 46 Fam. L. Q. 530 (2013), available at http://www.americanbar.org/groups/family_law/resources/family_law_in_the_50_states.html.
24 Douglas W. Allen, An Economic Assessment of Same-Sex Marriage Laws, 49 Harvard J. Of L. & Pub. Pol. 949, 967 (2006), available at http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No3_Allen.pdf.
25 Stephanie Coontz, Divorce, No-Fault Style, N.Y. Times, June 16, 2010, at A29, available at http://www.nytimes.com/2010/06/17/opinion/17coontz.html?_r=0.
27 H.B. 1452 § 413(a), 98th Gen. Assemb., Reg. Sess. (Ill. 2013) available at http://ilga.gov/legislation/98/HB/09800HB1452ham002.htm.
30 Lasker, supra note 4.
32 H.B. 1452 § 602.10(d), 98th Gen. Assemb., Reg. Sess. (Ill. 2013) available at http://ilga.gov/legislation/98/HB/09800HB1452ham002.htm.
33 H.B. 1452 § 602.10(h), 98th Gen. Assemb., Reg. Sess. (Ill. 2013) available at http://ilga.gov/legislation/98/HB/09800HB1452ham002.htm.
34 H.B. 1452 § 504(a)(12), 98th Gen. Assemb., Reg. Sess. (Ill. 2013) available at http://ilga.gov/legislation/98/HB/09800HB1452ham002.htm.
35 Lasker, supra note 4.
36 Id. See, e.g., In re Marriage of Connors, 303 Ill. App. 3d 219, 230, 707 N.E.2d 275, 284 (Ill. App. Ct. 1999).
37 Lasker, supra note 4.
39 H.B. 1452 § 600, 98th Gen. Assemb., Reg. Sess. (Ill. 2013) available at http://ilga.gov/legislation/98/HB/09800HB1452ham002.htm.
42 H.B. 1452 § 602.10, 98th Gen. Assemb., Reg. Sess. (Ill. 2013) available at http://ilga.gov/legislation/98/HB/09800HB1452ham002.htm
44 H.B. 1452 § 602.10(e), 98th Gen. Assemb., Reg. Sess. (Ill. 2013) available at http://ilga.gov/legislation/98/HB/09800HB1452ham002.htm.
45 H.B. 1452 § 102(7)(B), 98th Gen. Assemb., Reg. Sess. (Ill. 2013) available at http://ilga.gov/legislation/98/HB/09800HB1452ham002.htm.
46 H.B. 1452 § 102(7)(E), 602.10(e), 98th Gen. Assemb., Reg. Sess. (Ill. 2013) (as introduced) available at http://ilga.gov/legislation/98/HB/09800HB1452.htm.
47 H.B. 1452 § 602.5(c), 98th Gen. Assemb., Reg. Sess. (Ill. 2013) available at http://ilga.gov/legislation/98/HB/09800HB1452ham002.htm See also H.B. 1452 § 602.7(b), 98th Gen. Assemb., Reg. Sess. (Ill. 2013) available at http://ilga.gov/legislation/98/HB/09800HB1452ham002.htm.
48 H.B. 1452, 98th Gen. Assemb., Reg. Sess. (Ill. 2013) available at http://ilga.gov/legislation/98/HB/09800HB1452ham002.htm.
49 H.B. 1452 § 602.9(b)(4), 98th Gen. Assemb., Reg. Sess. (Ill. 2013) available at http://ilga.gov/legislation/98/HB/09800HB1452ham002.htm
50 H.B. 1452 § 602.9(c), 98th Gen. Assemb., Reg. Sess. (Ill. 2013) available at http://ilga.gov/legislation/98/HB/09800HB1452ham002.htm
51 See 750 ILCS 5/607(a-3). Full text of the Act is available at http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=098-0597
52 See Jocelyn Block & Melinda Smith, Tips for Divorced Parents: Co-Parenting with Your Ex & Making Joint Custody Work, Helpguide.org (Nov. 2013), http://www.helpguide.org/mental/coparenting_shared_parenting_divorce.htm See also
53 See, e.g., National Parents Organization, Our Mission: Advocating for Children’s True Best Interests, (last visited Mar. 2, 2014) https://nationalparentsorganization.org/about-npo/our-mission.
54 Adam W. Lasker, Lawpulse: Current Version of Family Law Overhaul Gets Mixed Reviews, 100 Ill. B.J. 446 (Sept. 2013), available at http://www.isba.org/ibj/2013/09/lawpulse/currentversionoffamilylawoverhaulbi
55 For more information on the status of HB 1452, visit http://ilga.gov/legislation/billstatus.asp?DocNum=1452&GAID=12&GA=98&DocTypeID=HB&LegID=72208&SessionID=85
56 H.B. 5425 § 602.4(a), (c), 98th Gen. Assemb., Reg. Sess. (Ill.2014) available at http://ilga.gov/legislation/fulltext.asp?Doc-Name=&SessionId=85&GA=98&DocTypeId=HB&DocNum=5425&GAID=12&LegID=80301&SpecSess=&Session=.
57 H.B. 15425 § 602.4 (c), 98th Gen. Assemb., Reg. Sess. (Ill. 2014) available at http://ilga.gov/legislation/fulltext.asp?DocName=&-SessionId=85&GA=98&DocTypeId=HB&DocNum=5425&GAID=12&LegID=
58 S.B. 3231 § 504(a), 98th Gen. Assemb., Reg. Sess. (Ill. 2014) available at http://ilga.gov/legislation/fulltext.asp?DocName=&SessionId=85&GA=98&DocTypeId=SB&DocNum=3231&GAID=12&LegID=
59 S.B. 3231 § 504(b-1), 98th Gen. Assemb., Reg. Sess. (Ill. 2014) available at http://ilga.gov/legislation/fulltext.asp?DocName=&-SessionId=85&GA=98&DocTypeId=SB&DocNum=3231&GAID=12&LegID=
60 S.B. 3231 § 504(b-2), 98th Gen. Assemb., Reg. Sess. (Ill. 2014) available at http://ilga.gov/legislation/fulltext.asp?DocName=&-SessionId=85&GA=98&DocTypeId=SB&DocNum=3231&GAID=12&LegID=
80327&SpecSess=&Session=. Other pending legislation pertaining to family law in Illinois includes House Bill 5991, which amends the definition of child for child support purposes, and Senate Bill 2630, which creates a rebuttable presumption that a parent is able to take a child out of the country.
61 Julie Garrison, Shared Parenting Laws Trends Across the Country, DadsDivorc e. com, Sep. 25, 2012, http://www.dadsdivorce.com/articles/shared-parenting-laws-trends-across-the-country.html.
62 While this article attempts to outline the major changes presented in HB 1452, does not, and cannot possibly attempt to encompass all of them. For the full text of HB 1452, please visit http://ilga.gov/legislation/fulltext.asp?DocName=&Session-Id=85&GA=98&DocTypeId=HB&DocNum=1452&GAID=12&LegID=72208&SpecSess=&Session=.
Lisa K. Murphy is a recent graduate from The John Marshall Law School as of May 2014. She has worked as an extern for DuPage Bar Legal Aid Service, Chicago Volunteer Legal Services, and the U.S. District Court for the Northern District of Illinois. She is active in the DuPage County Bar Association Child Advocacy Committee, and has served as a Staff Editor of The John Marshall Law Review. She completed a BA in International Studies and Spanish from DePaul University in 2010. Upon her admittance to the Illinois Bar, Lisa plans to work as a child advocate and practice family law. L.K.Murphy1@gmail.com.