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Reasons for Changes in Illinois Family Law
At the start of 2016, Illinois implemented several changes to its family law. Specifically, changes were made to Illinois divorce law.
There are no longer any grounds for divorce besides irreconcilable differences. Additionally, the term “custody” was eliminated, as well as the requirement for court approval in order to move with a child, pending the destination is within a certain radius.
Though the changes may be small, they indicate important modifications in procedures and concepts made by the legislature.
No More “Custody” and “Visitation”
Previously, the language in the law used the terms “custody” and “visitation." Now, the law uses the terms “decision making” and “parenting time,” respectively. One of the major reasons why the law moved away from the word “custody” was because it was unclear and left parents confused.
A parent would ask for “custody,” meaning that he or she wanted the child to live with him or her. However, the court also defined custody as the power and ability to make decisions on behalf of the child, such as school choice or medical decisions. Now, the court has changed the terminology to make it more straightforward by calling it “decision making.”
Illinois Custody Relinquishment Prevention Act
The Illinois Custody Relinquishment Prevention Act went into effect in 2015 to help curb a problem that many families were facing. The issue was called “custody for care”—families who needed intensive mental health support for their children would feel forced into giving up custody to the Illinois Department of Child and Family Services (DCFS).
The Problem the Act Addresses
Children with severe mental health issues often need intensive and expensive psychiatric treatment. Yet even with health insurance, many plans do not cover this kind of treatment. Therefore, parents were not able to access this treatment on their own.
If parents gave custody to DCFS then they were able to provide those services. Parents were left with a difficult choice—either their child would go without treatment, or parents would need to give up parental rights to their child.
Shared Parenting Time Becoming More Common
Going through a divorce can be incredibly difficult for all parties involved. However, a divorce takes a special toll on the children of a failing marriage. Custody battles can get nasty, but in the end the judge is supposed to make decisions that are the best interest of the children. More and more frequently, judges are finding that shared parenting time is what is best for the children involved.
Previous Trend
In the past, split custody between parents was common. Children would live with one parent while the noncustodial parent would have “visitation” and spend a much smaller amount of time with the children. Experts and judges believed that it was better for the children to have a stable home and see the noncustodial parent occasionally. Yet this would often turn into a situation that was colloquially called “Disney Dad”—when the noncustodial parent had a relationship with his children that centered on fun activities instead of a typical parent/child relationship that included both fun times and serious times, stressful times, and other aspects of everyday life. Now, courts and experts are moving in a different direction.
Will I Have to Pay Alimony?
If you are considering divorce, you may have concerns regarding whether or not you will have to pay alimony, also known as spousal support or maintenance. Spousal support is less common than it once was, but it is still ordered in some divorces.
Factors the Court Takes into Consideration
The court considers several factors when determining a spousal maintenance award. Maintenance calculations are separate from child support (for the most part) and are not influenced by any marital wrongdoing or fault. The factors the court will look at include the income and property of each spouse, the financial needs of the spouses, the length of the marriage, and the future and present earning capacity and job prospects of the spouses. Additionally, the court will look at whether the spouse requesting alimony contributed to the education or training of the other spouse, the health of the spouses, and any other considerations the court finds relevant.
The History of Divorce
Time magazine recently reported on the history of divorce in the United States. While it may be assumed that divorce is a modern concept that did not become popular until the 1960s and 1970s, the first uptick in the American divorce was approximately 200 years beforehand.
Steven Mintz, a history professor at the University of Texas at Austin, identifies the American revolution as the beginning of the increase in the divorce rate in America. The concept of the revolution and breaking the union of countries was a precursor of the increase of divorce in the 1820s and 1830s as people began to realize that independence from spouses could be analogous to the separation between England and America.
However, the laws were very different then. Moreover, couples had to prove to the court that there was adultery or physical cruelty in order to get divorced. To get around these restrictions, many people relied on the “omnibus clauses” in divorce law which allowed judges to grant divorces in other cases at their discretion.
Illinois Judge Throws Out Child Support Claim Against Sperm Donor
In Illinois, there is a statute that regulates a sperm donor’s liability for child support. Illinois law removes child support liability from any sperm donor as long as the insemination takes place with the assistance of a licensed physician. This is the only time donor agreements are specifically upheld in Illinois.
This September, a Cook County case dismissed a woman’s claim for child support from a sperm donor with whom the woman claimed she also had a romantic relationship. The Chicago Law Bulletin reports that this case is the first published case law that concerns donor agreements.
With the exception of truly unique circumstances, biological parents are generally not able to contract away their responsibilities for child support without court approval. The main circumstance where the court may agree to terminate the responsibility for child support is if one or both of the biological parents voluntarily give up their rights. In addition, there must be at least one person who is willing and able to adopt the child and take on those responsibilities.
Brangelina Divorce: What it Would Look Like in Illinois
If you have followed any recent celebrity news, or even mainstream news, you have probably heard about the impending divorce of Brad Pitt and Angelina Jolie—two of the most famous people in the United States.
The actors have six children together. Therefore, along with figuring out the monetary parts of their divorce, they will also have to determine parenting time and responsibility arrangements regarding the children.
The divorce was filed in California and thus California law would apply. If they were getting divorced in Illinois, however, things would look a little different.
Jolie’s Proposal
According to news sources, Jolie has requested sole physical custody of the children and has asked for joint legal custody. What this means is that if granted, the children would live with Jolie. Though, presumably, Pitt would have some visitation with the children with or without other conditions (such as supervision).
Common Child Support Mistakes
NOTE: As of July 2017, the law governing child support in Illinois has changed. Please see our Child Support page for more information.
Issues of child support are often about more than money and can be very emotional for all parties involved—having to face an ex-spouse in court can be difficult and nerve wracking. Hence, mistakes may be made by both the party paying child support and the party receiving child support. Still, many (if not all) of these common mistakes can be avoided with the assistance of a knowledgeable child support attorney. Consider the following mistakes and how they can be avoided.
Not Speaking With an Attorney Early Enough
Child support laws may seem straightforward; however, like most laws, there are important exceptions and clarifications to every rule.
Revoking Paternity: What if I Do Not Believe I Am the Father?
If someone is alleging that you are the father to a child that you do not believe is yours, then it is important to take the necessary steps to prove parentage and make sure that you are not liable for child support or other responsibilities to the mother or child.
If You Are Married to the Mother
Under Illinois law, if you are married to the mother of the child at the time of the birth, there is a presumption that you are the father of the child. The spouse of the mother is also presumed to be the father of a child if the mother was married and the marriage ended within 300 days before the birth of the child. If there are two different presumed fathers, then the court will look at all the facts and circumstances and make a decision in line with the best interests of the child.
Illinois allows an exception for babies born under a valid gestational surrogacy agreement. For instance, if a man is married to a woman who has agreed to be a gestational surrogate pursuant to a valid contract, then he will not be presumed to be the father.
Illinois DCFS Overhaul Approved by Federal Judge
It is no secret that Illinois child welfare system, specifically the Illinois Department of Child and Family Services (DCFS), has various problems that need to be fixed. The Chicago Tribune describes the state’s child welfare system as “troubled.” However, hope is on the horizon.
A federal judge recently approved an Illinois plan to make massive changes to the system and to keep more children in home-like environments rather than in institutions.
Issues with DCFS
In the past, DCFS has been criticized for not doing a sufficient job at keeping the children in its care safe and well treated. The children that end up in DCFS custody are often the most vulnerable; hence, it is even more important that these children are treated humanely.
The American Civil Liberties Union (ACLU) has been monitoring the Illinois DCFS for decades and has been critical of the state’s use of residential juvenile detention facilities. Last year, a court appointed a panel of experts who found that the Illinois DCFS system needed sweeping reforms and also suffered from systemic deficiencies.
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