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SIGNIFICANT CHANGES TO DIVORCE AND CUSTODY LAW IN ILLINOIS

There have been several major changes to the area of family law in Illinois, effective January 1, 2016. It is essential that you are aware of these changes when handling any family law issue, including divorce and custody. The attorneys at Smith & Weer, P.C. are well-versed in these recent developments and, therefore, can help obtain the most favorable outcome for their clients.

A summary of the most significant changes made by Public Act 99-0090, amending the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”), are included below. This summary is by no means exhaustive. If you are facing a family law issue and would like to learn more about how these changes could affect you, contact our office at (309) 347-4300 to schedule a free, no-obligation consultation at our offices in Pekin, Peoria or Galesburg, Illinois.

The End of For-Cause Divorce

Prior to the change in the law, parties were allowed to pursue various grounds for divorce for cause, including but not limited to: (1) impotency; (2) adultery; (3) willful desertion; (4) drunkenness and/or drug addiction; and (5) physical and/or mental cruelty. The change in law eliminated all for-cause grounds. Now, the only grounds for divorce in Illinois is “irreconcilable differences,” otherwise known as no-fault divorce.

Additionally, the change in law relaxed the requirement for how long parties must live separate and apart prior to filing for divorce. Under the old law, parties had to live separate and apart continuously for at least two years, although the two-year requirement could be waived by written agreement between the parties if they lives separate and apart for at least six months. Now, parties must live separate and apart continuously for only six months before the divorce petition is filed.

No More “Custody” and “Visitation” and Proposed Parenting Plan Requirement

The amended law does away with the ideas of child custody and visitation. Prior to the amendment, the IMDMA allowed a court to award parents joint or sole custody, with the non-custodial parent usually being granted visitation. The revised law focuses instead on allocation of “parenting time” and “parental responsibilities.”

The parties may reach written agreement with regard to allocation of parental responsibilities and parenting time, with such written agreement – or parenting plan – being approved by the judge. Otherwise, the judge may decide to allocate significant decision-making authority to one parent (similar to one parent having sole custody under the old law). Significant decision-making may include the following areas: (1) educational needs and services; (2)health/medical treatment; (3) religion; and (4) participation in extracurricular activities. Likewise, courts may decide how much parenting time to allot to each parent.

For both allocation of parental responsibilities and parenting time, the court must base its decisions on the children’s best interests. In making such determination, the court will consider several factors, including but not limited to: (1) the children’s wishes; (2) the physical and mental health of all those involved; (3) the parents’ ability (or inability) to get along and make decisions for the children; (4) the parents’ wishes; and (5) prior conduct of and/or agreement between the parties.

If the court allocates significant decision-making authority to one parent, the other parent still is entitled to reasonable parenting time (similar to visitation under the old law). A court may deny parenting time if it finds, by a preponderance of the evidence (i.e. if it is more likely than not), that allocating such parenting time would seriously endanger the children’s mental, moral or physical health, or significantly impair the children’s emotional development. A court may deny parenting time after holding a hearing on this issue. As a practical matter, the parent with less parenting time usually will be obligated to pay child support.

In order to encourage parents to peacefully resolve custody disputes, the law now requires that parties file a proposed parenting plan with the court whenever a party files a petition involving allocation of parenting time or parental responsibilities. The proposed plan must be filed within 120 days after such petition is served on the other party and must set forth the following, without limitation: (1) allocation of significant decision-making responsibility; (2) proposed living arrangements for the children involved and a proposed parenting time schedule; (3) which parent will be allocated the majority of parenting time; and (4) transportation responsibilities. The court usually will require the parties to undergo mediation to either draft or revise the proposed parenting plan.

Restrictions on Relocation in Custody Cases

The law now places greater restrictions regarding parental relocation. Under the old law, custodial parents were allowed to relocate anywhere in Illinois without notice to the other parent or court approval. Under the new law, parents who are allotted the majority of parenting time (i.e., a parent with residential custody) can relocate only up to 25 miles away from their current residence if they reside in Cook, Will, McHenry, DuPage, Kane and Lake Counties. The parent may relocate up to 50 miles away from his or her current residence if he or she resides outside of these counties. If the parent exceeds these limitations, he or she must obtain the other parent’s agreement or approval from the court.

Likewise, a parent may move across state lines without agreement from the other parent or court approval, so long as he or she moves no farther than 25 miles from his or her current residence.

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