In this article, we explain Illinois Divorce and Family Law in 2021, including:
- COVID-19 impact on changes to Divorce and Family Law
- A summary of changes to Divorce and Family Law in the past five years
- Highlights of the IMDMA
- New laws that may affect Divorce and Family cases in 2021
We discussed recent changes to Illinois Child Custody Law in 2021.
COVID-19 impact on changes to Divorce and Family Law
Family law has undergone many alterations from 2016 to today, so there aren't many changes taking effect as of January 1, 2021. However, due to the historic COVID-19 pandemic, several procedural changes have temporarily been enacted. On March 17, 2020, in light of the pandemic, the Illinois Supreme Court issued an order, resulting in Illinois Judicial Branch operations in courthouses and court facilities mainly confined to only emergency and essential matters. Courts across the state responded to the pandemic and enacted policies and procedures to balance public health and safety with open access to the judicial system. Each county has enacted its own rules and policies for operations during the pandemic, with most counties relying heavily on Zoom for small court proceedings. Illinois Courts COVID-19 information and updates can be found at the Illinois courts website.
Several state legislatures, including Illinois, suspended their sessions in response to the COVID-19 pandemic. The Illinois General Assembly suspended its session effective March 16, 2020. The Illinois General Assembly reconvened on May 20, 2020, before adjourning on May 23, 2020. Due to the severely shortened General Assembly session, very little legislation other than legislation relating to the COVID-19 pandemic was passed.
Summary of Changes to Divorce and Family Law in the past five years:
In examining the state of Divorce and Family Law in 2021, we look at the changes made in the last five years.
A significant overhaul of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) was completed in 2016.
2016
The significant changes in 2016 included:
· Eliminating all grounds for divorce except irreconcilable differences
· Changing terminology
o "Custody" is now referred to as "Allocation of Parental Responsibilities."
o "Visitation" is now referred to as "Parenting Time."
o "Removal" is now referred to as "Relocation."
· Decision-making regarding Medical, School, Extracurriculars, and Religion can be split between parents. Decision-making no longer needs to be given all to one parent or the other. (i.e., Mom can make final decisions regarding Medical and Religion, and Dad can make final decisions regarding School and Extracurriculars)
· Previously, a parent with most parenting time could move a child away from their current residence to a residence anywhere in Illinois without court approval. Only moves less than 25 miles (for those living in Cook, DuPage, Kane, Lake, McHenry, or Will county) or 50 miles (for those living in all other counties) can occur without court approval.
· All of the changes highlighted in this article are still in effect. Several other minor changes were made to the IMDMA and Parentage Act, some of which have been further changed since 2016.
2017
Effective January 1, 2017, a cleanup of the 2016 rewrite of the IMDMA was enacted. This cleanup addressed things such as errors that occurred when cross-referencing sections and also provided further clarifications to the law. Some of the substantive clarifying changes included:
· Clarifying for post-educational expenses, the guide is "in-state" tuition at the University of Illinois at Urbana-Champaign.
· Clarifying that the mile standard on relocation is based on an "internet mapping service."
· Clarifying the two-year ban from amending a judgment applies only to "parental decision-making responsibilities" and doesn't apply to "parenting-time" provisions.
· Clarifying that a respondent who doesn't file an appearance is not required to file a parenting plan unless specifically ordered to do so by the court.
· Introducing a new Article 7 of the Parentage Act of 2015 affecting artificial reproduction.
Also, in 2017, effective July 1, 2017, Illinois moved to an income share approach to child support. This means in Illinois, the courts no longer look solely to the income of the parent paying support, but the court now looks to the incomes of both parties and also considers the number of overnights each parent spends with the child. Read more about Illinois Child Support Updates.
2019
Effective January 1, 2019, Illinois also changed the formula utilized to calculate maintenance. Prior to 2019, gross income was utilized. Now net income is utilized. There is still a 40% of cap regarding maintenance only. But the cap applies to net income.
2020
Effective January 1, 2020, Illinois changes the formula utilized to calculate the length of maintenance.
Illinois Marriage and Dissolution of Marriage Act (IMDMA) now
Grounds
Irreconcilable differences are the only grounds for divorce that can be alleged.
Division of Property
The court will equitably divide all marital property. "Equitable" division does not always mean a 50/50 split of property between the spouses. The division of property will depend on a number of factors, including the length of the marriage, age, and health of the spouses, income or property brought into the marriage by both spouses, use of marital funds for non-marital purposes, etc. Property to be equitably divided includes real property, bank accounts, retirement accounts, personal property, furniture, furnishings, vehicles, appliances, etc.
Division of Debts
The court will also equitably divide all marital debt. Marital debt includes all debts incurred during the marriage for the purpose of the marriage, regardless of whose name the debt is in. Common examples of marital debt include credit cards, personal loans, mortgages, car loans, etc.
Maintenance
If maintenance is appropriate, the guideline amount is determined by taking 33.33% of the payor's net income minus 25% of the payee's net income. (not to exceed 40% of the combined income of the parties).
Duration of Maintenance
Guideline duration is calculated by multiplying the length of the marriage by the number of years married at the time the Petition for Dissolution of Marriage was filed:
- less than 5 years (.20)
- 5 years or more but less than 6 years (.24)
- 6 years or more but less than 7 years (.28)
- 7 years or more but less than 8 years (.32)
- 8 years or more but less than 9 years (.36)
- 9 years or more but less than 10 years (.40)
- 10 years or more but less than 11 years (.44)
- 11 years or more but less than 12 years (.48)
- 12 years or more but less than 13 years (.52)
- 13 years or more but less than 14 years (.56)
- 14 years or more but less than 15 years (.60)
- 15 years or more but less than 16 years (.64)
- 16 years or more but less than 17 years (.68)
- 17 years or more but less than 18 years (.72)
- 18 years or more but less than 19 years (.76)
- 19 years or more but less than 20 years (.80)
For a marriage of 20 or more years, the court, in its discretion, shall order maintenance for a period equal to the length of the marriage or for an indefinite term.
Modification of Maintenance
Upon the showing of a substantial change in circumstances, a maintenance order can be modified. If maintenance is modified, the favorable tax treatment of the payments whereby the paying spouse is able to deduct the payments from their income and the recipient spouse includes the payments as income might be able to be retained.
Child Support
Illinois has guidelines for child support. To calculate the amount of guideline child support, the court looks to the net income of both parties, determines the number of overnights each parent spends with the child, and then calculates the guideline child support based on a formula issued by the state. Generally speaking, the court will not consider a new spouse's income when calculating guideline child support.
Modification of Child Support
Upon the showing of a substantial change in circumstances, a child support order can be modified. If the original child support order was based on the net income of the payor, you are not grandfathered into the prior child support guidelines formula. The new income share guidelines will apply.
Allocation of Parental Responsibility
Allocation of Parental Responsibilities refers to
1. Parenting time
2. Decision making
Parenting time refers to the schedule in which the parent is responsible for caring for the child. Decision-making refers to significant decisions relating to Medical, School, Extracurriculars, and Religion. Sole decision making or joint decision making can be individually ordered for each of the categories of decisions: Medical, School, Extracurriculars, and Religion. Each category of decision-making is designated independently. This means, for example, Mom can be the sole decision maker for Medical, Dad is the sole decision maker for School, and Mom and Dad are joint decision-makers for Extracurriculars and Religion.
Illinois law encourages the "maximum involvement and cooperation of both parents regarding the physical, mental, moral, and emotional wellbeing of their child."
Restrictions on Parenting Time
It is presumed both parents are fit and proper persons to care for their children. The court will not place any restrictions on parenting time unless it finds that a parent's exercise of parenting time would seriously endanger the child's physical, mental, moral, or emotional health.
Other new laws that may have an impact on your Divorce or Family Law case
Minimum Wage
- Effective January 1, 2021, the Illinois Minimum Wage will increase to $11/ hr. and $6.60/ hr. for tipped employees.
- As of July 1, 2020, the minimum wage in Chicago is $13.50 per hour for employers with 4 to 20 workers and $14 per hour for employers with 21 or more workers. Tipped workers (workers who receive tips as part of their wage, like restaurant servers) have a minimum wage of $8.10 for employers with 4 to 20 workers and $8.40 for employers with 21 or more workers. If a tipped worker's wages plus tips do not equal at least the full minimum wage, the employer must make up the difference.
- As of July 1, 2020, the minimum wage for City contracts or concessionaire agreements is $14.15 per hour or $7.65 per hour for tipped workers.
The minimum wage is an essential consideration in Divorce and Family Law cases because it can have an effect on the amount of child support or maintenance that is ordered to be paid.
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