On September 1, 1977, the Illinois Marriage and Dissolution of Marriage Act replaced the antiquated Illinois Divorce Act, causing angst and trepidation among those attorneys practicing at that time. On May 19, 2008, the Illinois House of Representatives adopted house resolution 1101 and established the Illinois Family Law Study Committee to review the Illinois Marriage and Dissolution of Marriage Act which was then 31 years old. As a result of the work of that committee and many others, on July 21, 2015, Governor Rauner signed Senate bill 57 into law as PA 99-0090 and created an updated Illinois Marriage and Dissolution of Marriage Act that Act takes effect January 1, 2016. Not surprisingly, the same angst and trepidation ensued among practitioners. Again, family law practitioners will get over it.
750 ILCS 5/102
Substantial language is added discussing the protection of children from violence and conflicts, and restates the rules of construction with respect to the provisions of the Act with regard to parents and parenting of children.
750 ILCS 5/104
This section provides that when an action is brought in a venue in which neither the petitioner nor respondent resides, the petitioner shall file a written motion to be set for hearing and ruled upon by the court advising that the forum selected is not one of a proper venue and seeking an appropriate order from the court allowing a waiver of the venue.
750 ILCS 5/104(c)
The Act is amended to provide that if a matter is raised in the pleadings as a matter of defense and is affirmatively pleaded the failure to reply is not an admission of the legal sufficiency of the new matters.
750 ILS 5/104(d)
Pleadings are defined as including any petition or motion filed in the dissolution of marriage case which if it were filed independently, would constitute a separate cause of action.
750 ILCS 5/401
This section eliminates all grounds for dissolution of marriage except irreconcilable differences. It further provides that, if the parties have resided separate and apart for a period no less than six months immediately preceding the entry of the judgment, there is an irrebuttable presumption that the requirement of irreconcilable differences has been met. This is a major change to the Act, and is at its substantive core.
750 ILCS 5/403(e)
Contested trials are to be bifurcated with the issue of irreconcilable differences being tried first regardless of whether that issue is contested or uncontested. When the court determines that irreconcilable differences have caused the irretrievable breakdown of the marriage, the court has the discretion to use the date of trial or such other day as agreed to by the parties or ordered by the court for purposes of determining the value of assets or property. In addition, the court shall enter a judgment, including a judgment dissolving the marriage, incorporation of a marital settlement agreement and any other appropriate findings only at the conclusion of the case and not after hearing testimony as to irreconcilable differences.
750 ILCS 5/501
This section provides that one form of a financial affidavit, as determined by the Supreme Court, shall be used statewide.
It also provides for the contents and documentary evidence required in that affidavit. In addition, upon motion of a party, the court may hold a hearing to determine whether and why there are disparities between the party’s sworn affidavit and the supporting documentation. If a party has recklessly or intentionally filed an inaccurate or misleading financial affidavit, the court is authorized to impose penalties and sanctions. The amendments to section 501 also permit support issues to be handled on a summary basis based upon allocated parenting time. Section 501 as amended also provides that an order need not include an exception for transferring, encumbering or otherwise disposing property in the usual course of business if the court enters appropriate orders that enable the parties to pay their necessary personal and business expenses. The amendment also provides appropriate relief including in the discretion of the court, the purchase or sale of assets and requiring that a party or parties borrow funds in appropriate circumstances.
The interim fees section of section 501 is amended to provide that responsive pleadings shall also include costs incurred and indicate whether costs are paid or unpaid and that the court shall consider all relevant factors listed in the statute adding the allocation of parental responsibility instead of the use of the term custody. The Act also provides that the order for the award of interim fees shall be a standardized form and labeled interim fee order.
750 ILCS 5/501(c–2)
The court may now allocate the use of the marital residence and the court may temporarily evict from the marital residence a party only in cases where the physical or mental wellbeing of their spouse or his or her children is jeopardized. This amendment includes, in this section, the provisions of 750 ILCS 5/701 of the prior Act. In addition, a temporary order may also allocate the fees or costs of mediation, which are born by the parties and may be assessed by the court as it deems equitable.
750 ILCS 5/503
This section refines and updates property to be allocated, determination of the nature of marital and nonmarital property, dissipation, and other financial allocation issues. Subsection (b) of this new section 503 has important factors of note: (1) it provides that property acquired prior to the marriage which would otherwise be non-marital property shall not be deemed to be marital property solely because the property was acquired in contemplation of marriage. The amendment also provides that the court shall make specific findings as to its classification of assets as marital and nonmarital property, values and other factual findings supporting its property award; and (2) it provides, for purposes of the distribution of property, that all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage is presumed marital property. The presumption includes non-marital property transferred into a co-ownership between the parties and that portion of the statute remains unchanged.
This section further provides that a spouse may overcome the presumption by showing by clear and convincing evidence that property was acquired by a method listed above in the section or was done for a state or tax planning purposes or for other reasons establishing that the transfer was not intended to be a gift. The amendment also provides for a clear and more specific definition of certain kinds of property as being marital or non-marital property. For example, the amendment provides that retirement plans including “defined benefit plans, defined contribution plans and accounts, individual retirement accounts and non-qualified plans” acquired or participated in by either spouse after the marriage is presumed to be marital property. The presumption that these pension plans are marital can also be overcome by a showing of clear and convincing evidence.
750 ILCS 5/504 (b-1)
With respect to the new maintenance formula already in effect, it provides that guidelines are applicable only to circumstances where the parties’ gross income is less than $250,000.00 and adds that the payor has no obligation to pay child support and maintenance or both from a prior relationship. The duration of the award of maintenance is now, as a result of the statute, calculated at the time the action was commenced and the language with respect to the time period is clarified.
750 ILCS 5/513
This section provides for educational expenses for a non-minor child. The amendment provides that the court may award educational expenses of any child of the parties. It further provides that unless the parties otherwise agree, all educational expenses which are the subject of a petition brought shall be incurred no later than the student’s 23rd birthday, except for good cause shown, but in no event no later than the child’s 25th birthday. The court may require both parties and the child to complete the FASA form and other financial aid forms and to submit any form of that type prior to a designated submission deadline for the form. The court may require either or both parties to provide funds for the child to pay for the cost of up to five college applications, the cost of two standardized college entrance examinations, and the cost of one standardized college entrance examination preparatory course. The amendment further provides that this section’s authority to make provision for educational expenses extends not only to periods of college, educational or professional or other training after graduation from high school, but also to any period during which the child is still attending high school even though he or she has attained the age of 19.
The section then provides the definition of what educational expenses are, which include the actual cost of the child’s post-secondary expenses, including tuition and fees, provided that the cost of tuition and fees does not exceed the amount of tuition and fees paid by a student at the University of Illinois at Urbana Champaign for the same academic year and, except for good cause shown, the actual cost of housing with the same restriction which would include that those expenses do not exceed the cost for the same academic year of a double occupancy student room with standard meal plan. In addition, costs include the actual cost of child medical expenses including medical insurance and dental expenses, reasonable living expenses of a child during the academic year and period of recess, and the costs of books and other supplies necessary to attend college.
The section provides that those sums may be ordered payable to the child, to either party, or to the educational institution. This section goes on to provide that if those educational expenses are ordered payable, each party and the child shall sign any consent necessary for the educational institution to provide a supporting party with access to the child’s academic transcripts records and grade reports.
That consent, of course, does not apply to non-academic records and a failure to execute the required consent may be a basis for modification or termination of an order entered under this section. In addition, the authority under this section to make provisions for educational expenses terminates when the child fails to maintain a cumulative “C” grade point average, except in the event of illness or other good cause shown, attains the age of 23, receives a baccalaureate degree or marries. A child enlisting in the Armed Forces, being incarcerated or becoming pregnant does not terminate the court’s authority to make provision for educational expenses for the child under this section.
An account established under Section 529, or some other college savings plan, shall be considered by the court to be a resource of the child and that the child is not a third party beneficiary to a settlement agreement or judgment between the parties and is not entitled to file a petition for contribution. In the event of the death of or legal disability of a party who would have the right to file a petition for contribution, the child of the party may then file a petition for contribution. The court in making an award of this section shall consider relevant factors, including the present and future financial resources of both parties to meet their needs, including but not limited to savings for retirement, the standard of living the child would have enjoyed, the financial resources of the child and the child’s academic performance. The establishment of an obligation to pay under this section is retroactive only to the date of filing a petition, but that the right to enforce a prior obligation to pay may be enforced either before or after the obligation is incurred.
750 ILCS 5/ 513.5
This section provides for support of a non-minor child with a disability. The court may award sums for the support of a child of the parties who has attained majority when the child is mentally or physically disabled and not otherwise emancipated. Those sums may be paid to one of the parents, to a trust created by the parties for the benefit of the non-minor child, or irrevocably to a special needs trust established by the parties and for the sole benefit of the non-minor child with a disability. This application for support may be made before or after the child has attained his or her majority. Unless an application for educational expenses is made for a mentally or physically disabled child under section 513, the disability that is the basis for the application for support must have arisen when the child was eligible for support under either section 505 or section 513 of the Act.
The section provides a list the relevant factors that the court shall consider which includes present and future financial resources of both parties including savings for retirement, standard of living the child would have enjoyed had the marriage not be dissolved, the financial resources of the child and any financial resources provided to or for the child, including but not limited to supplement security income, home base support provided pursuant to the Home Base Services Law for Mentally Disabled Adults. Further, a disabled individual means an individual who has a physical or mental impairment that substantially limits a major life activity, has a record of such impairment, or is regarded as having such impairment. Disability means a mental or physical impairment that substantially limits a major life activity.
The major overhaul for all practitioners to note and learn is the entire revamping of concepts formerly called custody, parenting time, visitation, and removal. Nothing can substitute for a thorough review of the new statute, but this overview will cover the most salient points.
750 ILCS 5/600 – Definitions
This is the definitional section of the new custody statute. It creates a new language for describing the court’s powers for resolving issues with respect to children in dissolution and child custody proceedings. A brief translation of some of the new terms is as follows:
“Allocation judgment” is what is formerly known as a Joint Parenting Agreement or Custody Judgment; “caretaking functions” is a new section which describes in great detail the many tasks a parent needs to do to raise a child; “parental responsibilities” means both parenting time and decision making responsibilities with respect to a child; “parenting plan” is the written agreement which also used to be called a Joint Parent Agreement or Custody Judgment and Joint Parenting Agreement; “relocation” means different things depending on where the party lives within the State of Illinois. If a case involves litigants from the more densely populated counties of the state (Cook, Kane, DuPage, Will, Lake and McHenry), a move of 25 miles is a “relocation.” For all other counties of the state, moving 50 miles is defined as a relocation. A change of residence across the state line, but less than 25 miles from the party’s primary residence is not a “relocation.” In that circumstance, Illinois retains jurisdiction of the case under the UCCJEA and remains the home state of the child, despite the litigant crossing the state line; “restriction of parenting time” involves not only supervised parenting time, but any limitation or condition on parenting time; “significant decision making” is defined as “deciding issues of long term importance in the life of a child.” This is similar, but not the same, as what was referred to in the past as major decision making in a Joint Parenting Agreement; and “step-parent” is defined very specifically as “a person married to a child’s parent including a person married to the child’s parent immediately prior to the parent’s death.”
750 ILCS 5/602.3 – Right of First Refusal
The new right of first refusal statute is essentially the same as the prior version, but inserts the new definitional elements of the new statute. Right of first refusal is now applicable if the court awards “parenting time” to both parents, as opposed to the old terms, “custody” and “visitation.”
750 ILCS 5/602.5 – Allocation of Parental Responsibilities: Decision-Making
Under the new statute, the areas of “significant decision making responsibilities” now include education, health, religion and choice of extracurricular activities for the child. Unique to the section on decision making regarding religion, the statute states “the court shall not allocate any aspect of the child’s religious upbringing if it determines the parents do not or did not have an expressed or implied agreement for such religious upbringing, or if there is insufficient evidence to demonstrate a course of conduct regarding the child’s religious upbringing that could serve as the basis of any such order.”
The court is now required to consider some new factors not previously included in the old custody statute, as well as the previous 750 ILCS 5/602 factors. However, the new statute now includes the following: (a) the ability of the parents to cooperate to make new decisions, or the level of conflict between the parties that may affect their ability to share decision making; (b) the level of each parent’s participation in past significant decision making with respect to the child; and (c) the distance between the parents’ residences, the cost and difficulty of transporting the child, each parent and the child’s daily schedules and the ability of the parents to cooperate in the arrangement.
750 ILCS 5/602.7 – Allocation of Parental Responsibilities: Parenting Time
This section is the substitute for the visitation statute 750 ILCS 5/607. New factors to be considered by the court are: (a) the amount of time each parent spent performing caretaking functions with respect to the child in the 24 months preceding the filing of any Petition for Allocation of Parental Responsibilities or, if the child is under two years of age, since the child’s birth; and (b) the distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules and the ability of the parents to cooperate in the arrangement.”
750 ILCS 5/602.8 – Parenting Time by Parents Not Allocated Significant Decision-Making Responsibilities
This section addresses the circumstance where one parent has sole custody and the other parent has no decision making authority but only visitation. The parent is entitled to have parenting time “unless the court finds, after a hearing, that the parenting time would seriously endanger the child’s mental, moral or physical health or significantly impair the child’s emotional development.” It is under this statute that the court has the power to restrict parenting time. Restricting parenting time, under the definitional section 750 ILCS 5/600, includes supervision of the parenting time or any other form of restriction or condition.
750 ILCS 5/602.10 – Parenting Plan
This statute requires all parents, within 120 days after service or filing of any Petition for Allocation of Parental Responsibilities, to file with the court either jointly or separately, a proposed parenting plan. The time period for filing a parenting plan may be extended by the court for good cause shown. If no parenting plan is filed within the required time, the court must conduct an evidentiary hearing to allocate parental responsibilities. Further, the court shall order mediation to assist the parties in formulating their parenting plans. The parenting plan, if agreed to by both parties, is binding upon the court unless the court finds it is unconscionable. This statute designates the minimum subjects to be covered in the parenting plan. These include allocation of decision making, provision for the child’s living arrangements and parenting time, mediation provision, each parent’s right of access to medical, dental and psychological records, as well as school records, the designation of which parent will be denominated as “the parent with the majority of parenting time” for purposes of section 606.10, the child’s residential address for school enrollment purposes only, each parent’s residence provisions for future modification, provisions for the exercise of right of first refusal and other subjects.
750 ILCS 5/603.10 – Restriction on Parental Responsibilities
Parental responsibilities can be restricted by the court if the parent has engaged in any conduct that seriously endangered the child’s mental, moral or physical health or that significantly impaired the child’s emotional development. This standard is a change from the old statute.
750 ILCS 5/604.10 – Interviews, Evaluation, Investigation
This section allows the court to interview the child; seek the advice of a court-appointed professional to assist the court in determining the child’s best interest; to allow a party to seek a retained professional for an evaluation and for the court to generally appoint an individual “deemed appropriate by the court” to conduct an investigation regarding issues with respect to determination of al location of parental responsibilities and parenting time.
750 ILCS 5/606.10
This statute provides that the designation of “custodian” for purposes of all state and federal statutes shall treat the parent who has the majority of the parenting time as having “custody” or is the “custodian”.
750 ILCS 5/607.5 – Abuse of Allocated Parenting Time
Under this statute the court has powers to enforce the parenting plan or allocation of parenting time judgment with, in essence, the court’s contempt power. The statute, in subsection (d), specifically provides: “In addition to any other order entered under (c), except for good cause shown, the court shall order a parent who has failed to provide allocated parenting time or to exercise allocated parenting time to pay the aggrieved party his or her reasonable attorney’s fees, court costs and expenses associated with the action brought under this Section.” This is a significant change from the old statute. In the past, visitation was a right, but not a responsibility. Under the new statute, parenting time is an enforceable obligation, both in allowing parenting time to the other parent and in exercising parenting time.
750 ILCS 5/609.2 – Parent’s Relocation (formerly out-of-state removal)
The provision sets forth new procedural and due process requirements for a parent who wishes to relocate with a child.
Under this statute, a parent who is relocating as the term is defined under paragraphs 1, 2 and 3 of (g) of Section 600 of the Act, must provide written notice of the relocation to the other parent. If the other parent signs the notice and the notice is filed with the circuit court, no further legal proceedings are needed. The parent may then relocate. Notice must be given at least 60 days in advance of the intended move.
Only in the event that the non-relocating parent objects to the relocation, fails to sign the notice provided, or the parents cannot agree on a modification of the parenting plan, must the parent seeking relocation file a petition to get permission to relocate. The factors the court must consider when modifying the parenting plan or allocation judgment are set forth under Section (g), items 1-11. The statute also includes in the list the familiar factors from the Illinois Supreme Court cases, In reMarriage of Eckert1 and In re Marriage of Collingbourne.2
This statute also states that if a parent has moved 25 miles or less from the primary residence, but lives outside of the State of Illinois, Illinois retains jurisdiction of the case under Section 202(c) of the Uniform Child Custody Jurisdiction and Enforcement Act and continues to be the “home state”3 of the child.
750 ILCS 5/610.5 – Modification
This new statute continues the same requirement that no custody judgment (now “Order Allocating Parental Responsibilities”) may be modified earlier than two years after its date unless the court finds the child’s present environment may endanger seriously his or her mental, moral or physical health or significantly impair the child’s emotional developmental. However, the court shall modify a parenting plan or allocation judgment when necessary to serve the child’s best interest, if the court finds by a preponderance of the evidence, that on the basis of facts that have arisen since the entry of the existing parenting plan or allocation judgment or were not anticipated therein, a substantial change has occurred in the circumstances of the child or either parent and that a modification is necessary to serve the child’s best interest. This statute is apparently codifying the old requirements for modification of custody and visitation, but using the new terms “Allocation of Parental Responsibility” and “Parenting Plan.”
The end result of this new statute is that practitioners must keep abreast of all the new changes and modify pleadings and judgments and orders accordingly. Further, as with new statutory changes comes the interpretation of these changes under existing case law or dealing with new, unchartered territories, such as “relocation.” Knowing these changes will help family law attorneys better serve their clients and better deal with the courts, which must also catch up on the new provisions.
1. 19 Ill. 2d 316,518 N.E.2d 1041(1988).
2. 4 Ill.2d 498, 791 N.E.2d 532 (2003).
3. See 750 ILCS 36/202(c).
Robin R. Miller has practiced family law for over 30 years. She has been a Fellow in the American Academy of Matrimonial Lawyers since 1992, and is President-elect of that organization for 2017.
She has served on the ISBA Family Law Section Council for twelve years and the DCBA Family Law Section since 1986. Ms. Miller received her Bachelor’s Degree in 1973, a Master’s Degree in Educational Psychology in 1976 at University of Illinois at Urbana-Champaign, and her J.D. from the University of Dayton School of Law in 1983.
William J. Scott, Jr., is a partner and chair of the Family Law Practice Group at Momkus McCluskey,
LLC in Lisle, Illinois. He is a member of the DCBA and the Illinois State Bar Association, and has been a Fellow in the American Academy of Matrimonial Lawyers since 1994. He is a past president of DCBA and a past president of the Illinois Chapter of the AAML. He received his AB from Saint Louis University in 1970 and his J.D. from DePaul University’s College of Law in 1973.