Illinois Matrimonial & Family Law

 by Wes Cowell; 21 July 2015

 

On 21 July 2015, Illinois Governor Bruce Rauner signed into law Senate Bill 57.  The new law (that link is a searchable, printer-friendly .pdf of Public Act 99-0090) takes effect 1 January 2016.

 

If you have questions about the new law or its application to new or pending cases, call my office.  We're here to help.

 

The new law will overhaul the following:

 

Divorce

• abolishes all accusatory grounds for divorce -- no more mental cruelty, no more adultery, no more grounds, period -- "irreconcilable differences" will be the only way to get divorced in Illinois.  750 ILCS 5/401.  The new law also reduces the separation period from two years to only six months in ALL cases.  (750 ILCS 5/401 (a-5))

• clarifies the method to be used to value assets in divorce.  (750 ILCS 5/402 (f))

• allows lawyers to initiate divorce proceedings in a more civil and less contentious way.  (750 ILCS 5/411 (d))

• raises the income caps (from $35,000 to $60,000) to make the low-cost, joint simplified divorce process available to more people.  (750 ILCS 5/452)

• makes uniform throughout the state a single Financial Affidavit, to be published by the Illinois Supreme Court.

• cleans up the unconstitutional language of the dissolution action stay prohibiting property transfers.  (750 ILCS 5/501.1)

• codifies the common law practice where the court may order a couple to sell assets, or force a divorcing spouse to borrow money, to pay professionals involved in the divorce.  (750 ILCS 5/501(a))

• clarifies the treatment of commingled marital and non-marital property.  (750 ILCS 5/503 (c))

• gives the court the power to appoint experts to value assets and advise on financial matters.

 

Custody

• Replaces every instance of the terms “custody," "joint custody," and "visitation" with "parental responsibilities" and "parenting time"  (throughout).

• Codifies the concept of "radius relocation clauses," akin to an "in-state removal." (750 ILCS 5/600 (g))

• Creates a new procedure for when parents "relocate" within Illinois and requires modification of the parenting plan, accordingly.

• Allows non-divorcing, married parents to seek "parental responsibilities" . . . and stay married. (750 ILCS 6/601.2)

• In the case of the death of one parent, the new law allows step-parents and grandparents to seek "parental responsibilities" without having possession of the child. (750 ILCS 5/501.2)

• Requires the court (when the parties don't agree) to allocate between the parents "significant decision-making responsibility for each significant issue involving the children."  750 ILCS 5/602.5)

• Eliminates, in parentage cases, the need to first establish that visitation would be in the child's best interest before establishing a "parenting time schedule." (750 ILCS 5/602.8)

• Requires the parties, within four months of commencing a case, to submit to the court a proposed or agreed "parenting plan." (750 ILCS 5/602.10)

• Replaces "Custody Judgments" and "Joint Custody Judgments" with the universal "Parenting Plan"  (750 ILCS 5/602.10)

• Clarifies the confusing and often ignored concept of the "residential parent" -- the new law requires a child's residential address to be specified in the parenting plan "for school enrollment purposes only;" and that "solely for the purpose of all State and Federal statutes (think I.R.S. dependency exemption) that require a designation or determination of custody or a custodian" the parenting plan must  "designate the parent who is allocated the majority of parenting time." (750 ILCS 5/602.10 (f)(5) and (6))

• Augments and clarifies the "604 expert" law. (750 ILCS 5/604.10)

 

Visitation

• Visitation becomes "parenting time" throughout and the law defines new "caretaking functions" and "non-significant decision making responsibilities."

 

"Parenting Time" Abuse and Enforcement

• The new law essentially copies for the civil court all of the remedies that used to be available only via criminal prosecution of "visitation interference;" including

  • the court may require a "non-complying parent" to post a cash bond that may be forfeited to the other parent,

  • the court may impose a civil fine,

  • the court may order the non-complying parent to reimburse the other parent for "all reasonable expenses" -- so if a non-complying parent doesn't show up for parenting time and the aggrieved parent must hire a baby-sitter, that expense can be reimbursed.  (750 ILCS 5/607.5)

  • the court may suspend the driver's license of a parent who abuses parenting time.

  • the court may place a violating parent on probation.

  • the court may sentence an offending parent to jail.

  • the court may impose a $500 fine for each finding of parenting abuse.

  • when a finding of contempt is made the order is to be posted with the State Police "on a daily basis" and from there will be made available to all local law enforcement so cops on the street will know what's what when called.

 

Child Support 

• make more equitable the application of the child support law. 750 ILCS 5/505 (h))

• make parenting time a consideration in child support awards. (750 ILCS 5/501 (a))

 

College Expenses

• Limits parents' obligation to help kids with college to those expenses incurred up to the child's 23rd birthday (750 ILCS 5/513(a) and the child must maintain at least a 'C' grade average.

• allows the court to compel parents to help kids with college application costs; including completing FAFSA forms, and covering the cost of 5 college applications, two standardized entrance exams, and one exam prep course. (750 ILCS 5/513)

• Limits parents' tuition and room-and-board liability to costs at University of Illinois - Urbana Champaign.

• Takes away from children the right to enforce orders about their own educational costs -- so, if the court orders Mom and Dad to pay for junior's college, and Mom and Dad decide not to do that, there's nothing junior can do about it.

 

Maintenance

• codifies the common law that maintenance payments terminate on the date of remarriage or cohabitation and NOT the date of filing of the Motion to Terminate Maintenance. (750 ILCS 5/510(c)

• requires former spouses receiving maintenance to notify the payor of their remarriage (750 ILCS 5/510(c))

 

Heart Balm Torts

• abolishes the "heart balm" torts (alienation of affections (740 ILCS 5/7.1) and criminal conversation (740 ILCS 50/7.1))

• abolishes breach-of-promise-to-marry lawsuits (740 ILCS 15/10.1 (b))

 

Venue

• ends venue abuse. (740 ILCS 5/104)

 

Legal Separation

• make more robust the relief available in cases of legal separation and ease the burden of proof for those seeking a legal separation. (750 ILCS 5/402)

 

Application

The new law will apply to:

• all cases filed on or after its effective date.

• all unresolved issues in all cases pending on the law's effective date.

• evidence adduced after the effective date.

• all modification requests filed after the effective date.