Marriages and divorces are codified in the state’s Marriage and Dissolution of Marriage Act (IMDMA which was extensively modified. Civil unions and same-sex marriages, which were recently allowed under Illinois law, remain. Nothing really has changed here other than the measures are now written into the Act.
One major change involves what grounds there are for a divorce. Under the old law, terms such as “mental cruelty” or even accusations of adultery or being chronically drunk could be seen as legal reasons for divorce. That’s changed. Under the new law, there’s only one reason for a divorce — irreconcilable differences. That’s a big deal and at the same time, it’s not so big of a deal. Nearly all divorces use this term so from a practical standpoint, it’s not a huge change. On the other hand, divorce is often emotional charged to begin with and while attorneys know statements like mental cruelty are just legalese, the average person doesn’t and can get quite upset if they are being accused of “extreme and repeated mental cruelty”.
Another major change and one that will affect many is the elimination of the need to live apart for two years or even to have an agreement to reduce that to six months. Now, the new law allows that the parties simply have to have “lived separate and apart” for six months prior to the entry of the judgment of dissolution. That’s a major change and one that could speed up the process in that parties no longer have to agree to waive a two year wait period that was applicable under the old law. The idea is if a couple has gotten to this point, it’s in the best interests of all to move it along quickly.
However, like any new law, there are some ambiguities. The new law doesn’t have a legal definition for what is “separate and apart”. However, “separate and apart” has been defined by the Appellate Court in In Re Marriage of Dowd, 214 Ill App. 3d 156, as not requiring the parties to actually live in separate residences but to have in essence stopped spousal relations for a period of six months.
Another huge change is the way the courts deal with children of divorce. The new laws don’t include the words custody or visitation. Instead, a judge will allocate parental responsibilities and set up parenting plans. Is this a major rethinking of how the courts look at children or is this just a New Age way of speaking while keeping the same mindset? That remains to be seen in practice but what is clear is that the old way of doing things through visitation is gone. Further, in an effort to speed up cases that involve minor children, parties are required to provide the court with a parenting plan within 120 days of filing of the petition for dissolution for the court’s approval or the matter will be set for trial on allocution of parental responsibilities.
Instead of visitation, there is “parenting time,” and instead of custody, it’s “parental responsibility.” The latter deals with significant decision making. It appears lawmakers wanted to move past the negative sense the old terms conveyed. Parents just want to be with their kids and not “visit” them. This change seems to reinforce the sense that while parents are separate, they are both still parents.
Also gone is the Joint Parenting Agreement which has been replaced by a Parenting Plan. In essence, it’s the same thing – a written layout of decision making responsibilities, how much time each parent gets with the child and other everyday matters. And that’s another change. Before, the day to day activities of such things as what food a child might eat or brushing teeth wasn’t addressed. The custody and the visitation orders dealt with things on a higher level, a 30,000-foot look so to speak.
The court can now delve into specific areas of a child’s life such as education, health or religion and allocate responsibility to both parents or to simply just one. While each parent might have a responsibility under those areas (and there’s also a separate allocation for extracurricular activities), there remains just one parent with whom the child will reside.
Another change allows parents to move up to 50 miles away from their current home and up to 25 miles if the move is across state lines. Both moves can be done without permission of the court. Under the old law, the “Residential Custodian” could move anywhere without the court’s permission, so long as it was within the state.
And while the idea was to create an arena where both sides felt like they were doing okay by their children, it’s possible the new laws could actually lead to more legal challenges as now there are more areas that feuding parents can bicker over.
That’s just a quick look at the new changes to the law. By no means is it is comprehensive and future posts will do a deeper dive into some of the nuances. Divorce is difficult and with children, it can be worse. That’s why you need an advocate who understands the pain and the stress. Here at Miller Law Offices, I have personally been through the process myself, and I realize that beyond all those legal terms are people and I am here to help you through your difficult times. I’ve been there and can use my own real-life experiences to not only fight for you in court but also to help you get through this. I am here for you. Give me a call to see how I can help you.
The coming New Year brought much change to Illinois’ Family law section. Last summer, lawmakers retooled criteria for divorce as well as child custody. This blog will take a brief look at some of these changes and how they could affect you.