The 2016 and 2017 modification of the Illinois Marriage and Dissolution of Marriage Act (IMDMA)

When the Illinois Legislature passed Public Act 99-90, which became effective January 1, 2016, it made significant changes to the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5.  This article is intended to help our clients understand the changes made to the IMDMA in 2016 and the changes that took effect July 1, 2017 by Public Act 099-0764.  Please note that this article does not contain all of the changes to the IMDMA, just the ones we felt were the most relevant to our clients.  If you are in need of legal assistance with divorce, child custody or support, the attorneys at Allison & Mosby-Scott have years of experience in these areas.  Please call us at 309-662-5084 to arrange an appointment.

“Heart-balm” Actions Eliminated

Heart balm actions were based on the are founded on the precept that the law should disfavors any intrusion with the marital relationship or family ties.  As such, Legislatures passed laws allowing suits for such things as the breach of marriage promise, alienation of affection, criminal conversation, and seduction.  In Illinois, the causes were abolished effective January 1, 2016 under the Alienation of Affections Abolition Act, Breach of Promise Abolition Act, and Criminal Conversations Abolition Act.  These “heart balm” actions were abolished to promote the recognition that amicable settlements of domestic relations matters are more beneficial to families and children in Illinois.

Grounds

 Under the new Act, there is now only one ground for dissolution, that irreconcilable differences have caused the irretrievable breakdown of the marriage. The previous waiting period of six months if the parties agree, or two years if the parties do not agree has been repealed. 750 ILCS 5/401.

Pleadings Defined

The IMDMA now defines “pleadings,” which clarifies which petitions and motions are subject to motions filed pursuant to sections 2-615 and 2-619 of the Illinois Code of Civil Procedure under In re Marriage of Wolff.  Specifically, the Act provides that “pleadings” include any petition or motion filed in dissolution of marriage cases which, if independently filed, would constitute a separate cause of action. 750 ILCS 5/105(d).

“Custody” and “Visitation” Now “Allocation of Parental Responsibility” 750 ILCS 5/600

Courts will no longer award “custody” or “visitation” under the new IMDMA.  Instead, courts will allocate “parental responsibilities” (formerly custody) and “parenting time” (formerly visitation).  “Parental responsibility” encompasses both significant decision-making responsibility and parenting time.  Under the statute, there are separate best interest factors for significant decision-making responsibility and parenting time.

Note that under the new IMDMA, allocation of significant decision-making authority is the equivalent of what legal custody was under the prior law.  There is nothing in the Act that requires that each parent be allocated decision-making responsibilities.  750 ILCS 5/602.5(a).  Also note that the term parenting time under the new law relates to the time that both parents spend with the children. 750 ILCS 5/602.7.  The term “visitation” now refers only to time a non-parent spends with the child, such as grandparent’s visitation.

Under the new law, a parenting plan is a written agreement that allocates significant decision making, parenting time, or both.  750 ILCS 5/602.5 retains most of the best interest factors from the old law when allocating parental responsibilities.  The one exception is that it does not include as a factor the relationship between parent and child.  The new law also adds a factor of history of decision making.

The Act now requires allocation of significant decision-making responsibility in four major life areas: education, religion (with some exceptions), health, and extra-curricular activities. Either or both parents can be allocated responsibility in any of these areas. 750 ILCS 5/602.5(b).  The best interest factors for allocating “parental responsibilities” under the Act are:

750 ILCS 5/602.5(c) Determination of child’s best interests. In determining the child’s best interests for purposes of allocating significant decision-making responsibilities, the court shall consider all relevant factors, including, without limitation, the following:

(1) the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to decision-making;

(2) the child’s adjustment to his or her home, school, and community;

(3) the mental and physical health of all individuals involved;

(4) the ability of the parents to cooperate to make decisions, or the level of conflict between the parties that may affect their ability to share decision-making;

(5) the level of each parent’s participation in past significant decision-making with respect to the child;

(6) any prior agreement or course of conduct between the parents relating to decision-making with respect to the child;

(7) the wishes of the parents;

(8) the child’s needs;

(9) 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;

(10) whether a restriction on decision-making is appropriate under Section 603.10;

(11) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;

(12) the physical violence or threat of physical violence by the child’s parent directed against the child;

(13) the occurrence of abuse against the child or other member of the child’s household;

(14) whether one of the parents is a sex offender, and if so, the exact nature of the offense and what, if any, treatment in which the parent has successfully participated; and

(15) any other factor that the court expressly finds to be relevant.

With regards to allocation of parenting time, 750 ILCS 5/602.7 contains most of the same best interest factors as the significant decision-making section, except that it includes as a factor the relationship between child and parent, and lacks the factor of history of decision making.  The Act sets forth the following best interest facts for allocating parenting time:

750 ICS 5/602.7(b) Allocation of parenting time. Unless the parents present a mutually agreed written parenting plan and that plan is approved by the court, the court shall allocate parenting time. It is presumed both parents are fit and the court shall not place any restrictions on parenting time as defined in Section 600 and described in Section 603.10, unless it finds by a preponderance of the evidence that a parent’s exercise of parenting time would seriously endanger the child’s physical, mental, moral, or emotional health.

In determining the child’s best interests for purposes of allocating parenting time, the court shall consider all relevant factors, including, without limitation, the following:

(1) the wishes of each parent seeking parenting time;

(2) the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to parenting time;

(3) 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 2 years of age, since the child’s birth;

(4) any prior agreement or course of conduct between the parents relating to caretaking functions with respect to the child;

(5) the interaction and interrelationship of the child with his or her parents and siblings and with any other person who may significantly affect the child’s best interests;

(6) the child’s adjustment to his or her home, school, and community;

(7) the mental and physical health of all individuals involved;

(8) the child’s needs;

(9) 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;

(10) whether a restriction on parenting time is appropriate;

(11) the physical violence or threat of physical violence by the child’s parent directed against the child or other member of the child’s household;

(12) the willingness and ability of each parent to place the needs of the child ahead of his or her own needs;

(13) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;

(14) the occurrence of abuse against the child or other member of the child’s household;

(15) whether one of the parents is a convicted sex offender or lives with a convicted sex offender and, if so, the exact nature of the offense and what if any treatment the offender has successfully participated in; the parties are entitled to a hearing on the issues raised in this paragraph (15);

(16) the terms of a parent’s military family-care plan that a parent must complete before deployment if a parent is a member of the United States Armed Forces who is being deployed; and

(17) any other factor that the court expressly finds to be relevant.

750 ILCS 5/602.8 deals with parenting time for parent not allocated significant decision-making responsibilities and is similar to the old law except that it appears to overrule In re J.W. as it states that “a parent who has established parentage under the laws of this state and who is not granted significant decision-making responsibilities is entitled to reasonable parenting time unless…. 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.”

750 ILCS 5/602.9 deals with visitation by certain non-parents and is equivalent to the previous nonparent visitation, the difference is that it is now in its own statutory section.

Designation of custodian for purposes of other statutes is dealt with in 750 ILCS 5/606.10 and is the only place in the new statute that uses the word “custody.”  Basically, this section requires that a parenting plan designate a custodian for purposes of state and federal laws that require designation of custody, and also specifies that for purposes of school code residence determination the parent with the majority of parenting time is considered to have legal custody.

Relocation Replaces Removal 750 ILCS 5/609.2

One of the areas that the new Act makes significant changes is with regards to removal.  The prior law allowed a parent to move with the child anywhere within the state without court permission.  Court permission was only required to move a child across state lines.  This mean that a parent who lived in a suburb of St. Louis couldn’t move a few miles away to St. Louis without Court permission but could move 300 miles away to Chicago without permission.  which is 300 miles away.  The new law replaces the concept of “removal” with the concept of “relocation.”

Relocation is defined in 750 ILCS 5/600(g) and means to move the child more than 25 miles from his or her home if the original home is Cook County or the collar counties and more than 50 miles if the original home is anywhere else in Illinois; and more than 25 miles from his or her original home if the move is out of state.  Under the Act, Illinois remains the home state in case of an out of state relocation within 25 miles of the original home.

While the relocation requirements only apply if a judgment has been entered, the Parentage Act of 2015 specifies that injunctive relief can be entered pre-judgment to prohibit a parent from moving the child out of state or require the parent to return the child to Illinois. 750 ILCS 46/502.  This injunctive relief provision is the same as under the old law.

Under the new law, relocation by the parent who has been allocated the majority of parenting time, or either parent if equal parenting time was allotted, requires a filed notice of intent to relocate.  If the other parent signs the notice and the relocating parent files the signed notice no court action is required.  But, if the non-relocating parent does not agree, court action and showing of best interest is required before a relocation. 750 ILCS 5/609.2.

Parenting time restriction and enforcement

750 ILCS 5/603.10 allows restriction of significant decision-making responsibility or parenting time if the court finds that the parent engaged in behavior that seriously endangered the child’s health or impaired the child’s development.  It authorizes remedies such as prohibition against drinking during or before visitation, and restriction of presence of specified persons.

750 ILCS 5/607.5 deals with non-compliance with a parenting time order and includes the same remedies as the prior law for non-compliance with parenting time.

Parenting Plan

Under the Act, all parents in cases involving allocation of parental responsibilities must file a parenting plan within 120 days of service.  If either parent fails to file a plan, the court will conduct an evidentiary hearing to allocate parental responsibilities.  If the parents can agree on a plan, the court will approve it unless it is unconscionable but can, on its own motion, conduct a hearing to determine whether it is in the child’s best interests.  If the parents do not agree on a plan, then the court will determine parental responsibilities and will take the proposed plans into account.  The requirements for what must be in a parenting plan are specified in 750 ILCS 5/602.10(f).

Modification

 Under the Act, the general rule is that a court is required to modify a parenting plan or allocation judgment if necessary to serve the child’s best interests if the court finds by a preponderance of the evidence: (1) a substantial change of circumstances has occurred with the child or of any parent caused by facts that have arisen since the entry of the existing parenting plan or allocation judgment or were not anticipated in the plan or judgment; or (2) that the existing allocation of parental responsibilities seriously endangers the child’s physical, mental, moral, or emotional health.

The court may also modify a parenting plan or allocation judgment without a showing of changed circumstances if it is in the child’s best interests and any of the following circumstances occur: (1) the modification is minor; (2) the modification reflects the actual arrangement under which the child has been living for the six months preceding the filing of the petition for modification, and the other parent has not objected; (3) the modification is necessary to modify an agreed parenting plan or allocation judgment that the court would not have approved or ordered if the court had been aware of the circumstances at the time of the order or approval; or (4) the parties agree to the modification.

Specifically, 750 ILCS 5/610.5 states:

(a) Unless by stipulation of the parties or except as provided in Section 603.10 of this Act, no motion to modify an order allocating parental decision-making responsibilities, not including parenting time, may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may endanger seriously his or her mental, moral, or physical health or significantly impair the child’s emotional development. Parenting time may be modified at any time, without a showing of serious endangerment, upon a showing of changed circumstances that necessitates modification to serve the best interests of the child.

(b) (Blank).

(c) Except in a case concerning the modification of any restriction of parental responsibilities under Section 603.10, the court shall modify a parenting plan or allocation judgment when necessary to serve the child’s best interests 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 of either parent and that a modification is necessary to serve the child’s best interests.

(d) The court shall modify a parenting plan or allocation judgment in accordance with a parental agreement, unless it finds that the modification is not in the child’s best interests.

(e) The court may modify a parenting plan or allocation judgment without a showing of changed circumstances if (i) the modification is in the child’s best interests; and (ii) any of the following are proven as to the modification:

(1) the modification reflects the actual arrangement under which the child has been receiving care, without parental objection, for the 6 months preceding the filing of the petition for modification, provided that the arrangement is not the result of a parent’s acquiescence resulting from circumstances that negated the parent’s ability to give meaningful consent;

(2) the modification constitutes a minor modification in the parenting plan or allocation judgment;

(3) the modification is necessary to modify an agreed parenting plan or allocation judgment that the court would not have ordered or approved under Section 602.5 or 602.7 had the court been aware of the circumstances at the time of the order or approval; or

(4) the parties agree to the modification.

(f) Attorney’s fees and costs shall be assessed against a party seeking modification if the court finds that the modification action is vexatious or constitutes harassment. If the court finds that a parent has repeatedly filed frivolous motions for modification, the court may bar the parent from filing a motion for modification for a period of time.

On financial issues, property provisions are never modifiable; child support, maintenance, and educational expenses are modifiable upon showing of a substantial change of circumstances. The parties may agree that maintenance is non-modifiable in amount, duration, or both.

Child support

The Act changes the terminology in that obligor becomes “supporting parent” and oblige becomes “parent receiving support.” 750 ILCS 5/505.  The Act also makes student loan repayments a deduction from income for net-income calculations. 750 ILCS 5/505(a)(3)(h).

Moreover, child support for post-secondary educational expenses and support for non-minor disabled children are separated out into separate sections, 750 ILCS 5/513 and 750 ILCS 5/513.5.

An application for support of a non-minor child with a disability can only be made if the disability arose when the child was eligible for support under 750 ILCS 5/505 or 750 ILCS 5/513. The Act also gives the court authority to order that sums awarded be paid to a trust for the benefit of the non-minor child with a disability, which the court did not previously have the authority to order.

With regards to post-secondary educations expenses, section, 750 ILCS 5/513 limits allowable expenses to an index based on the costs for in state tuition, costs, and fees at the University of Illinois Urbana-Champaign plus expenses such as medical expenses and other reasonable living expenses.  These expenses must be incurred no later than the student’s 23rd birthday unless otherwise agreed by the parties or for good cause shown.  However, an award cannot be made after the student’s 25th birthday under any circumstances.  The Act further specifies that the child is not a beneficiary of this sort of child support and therefore cannot file to establish or enforce an order on his or her own behalf.  Note that support under this section ends when the student fails to maintain a “C” average, unless because of illness or other extenuating circumstance, becomes 23 years of age or older, receives a bachelor’s degree, or marries.

Finally, support for pregnancy and birth-related costs can only be ordered if the action is brought within two years after the child’s birth. 750 ILCS 46/802(b).

Standardized Financial Disclosure Statement

All counties throughout the state of Illinois will use a uniform Financial Disclosure Statement.

2017 Changes to Illinois Family Law (Effective July 1, 2017)

In the fall of 2016, the Illinois Legislature passed a new Act changing the way child support is calculated in Illinois. The new law is effective July 1, 2017 and modifies two sections of the IMDMA, specifically 750 ILCS 5/505 and750 ILCS 5/510.  The Act now considers the combined income of the parties when determining child support, eliminates the former percentages and creates what is called the “income shares” model, which is how most states calculate child support.

Under the “income shares” model, the court refers to economic tables that will be put forth by the Illinois Department of Healthcare and Family Services to determine how much money would be allocated for the care of the child if a similarly situated couple were living together based on the combined income of the couple, the cost of living, and the number of children.  Each parent is only responsible for their pro-rata share of the calculated amount based on their income.

The Act also treats child support differently in “shared parenting” situations.  If each parent has the child for at least 146 overnights per year, the base amount of total child support is multiplied by 1.5.  This means that the total amount to be allocated to child support by both parents will be increased.  Moreover, in a shared parenting situation, the amount of time that each parent spends with the child will be a factor in calculating the amount of child support.  Basically, the more time a parent spends with the child, the less that parent’s support obligation will be relative to the other parent.  Of course, the time spent with the child does not become a factor until the both parents have 146 overnights per year. ​

Another change in the law is that 750 ILCS 5/505 (a)(3) now explicitly states that spousal maintenance received pursuant to a court order is income for child support purposes.  The Act excludes such things as Supplemental Security Income, Temporary Assistance to Needy Families, Supplemental Nutrition Assistance Program, and Child support for other children in the household from income.  Social Security Disability and retirement benefits are included in income.

Moreover, if a parent is unemployed or underemployed voluntarily, there is a rebuttable presumption that the income is “75% of the most recent United States Department of Health and Human Services Federal Poverty Guidelines for a family of one person.” There is also a rebuttable presumption that a minimum child support obligation of $40.00 per child, will be entered.