This article will give a brief overview of Illinois Family Law as there have been no significant updates to the law for 2024. We've seen some changes in the past few years and this article will identify the most up to date information with previous family law updates.
Overview of Updates to Family Law
The IDMA had an extensive overhaul in 2016. A long overdue, much-needed edit to the laws governing family law as the dynamics of the family have changed since the IDMA was last updated. A summary of the modifications to the IDMA is listed below.
Timeline of Modifications to Illinois Family Law
There were numerous modifications made to terminology used in family law during this time. First the IDMA abolishes the term custody and replaces it with parental responsibility allocation. Then, the term removal was changed to relocation. Visitation was replaced with the term “parenting time”, however visitation remains in the IDMA to refer to non-parental visitation, such as grandparent visitation.
The 2016 rewrite removed all grounds for divorce, except irreconcilable differences. The update also did away with the former practice of granting one parent sole responsibility for significant decision making in the areas of education, medical decisions, extracurricular activities, and religious up bringing. Now, with the current changes, parents can now split the decision- making responsibility.
Relocation provision received a much-needed face lift. The old law permitted a parent to “remove” (now relocate) a child to anywhere in the state without the court’s permission, but required the court’s permission to relocate out of state. The 2016 rewrite changed this. Now, a parent that wants to relocate with the child from his or her home can do so without the court’s permission as long as it 25 miles away if the child resides in Cook County or the surrounding collar counties. It is 50 miles for any other county in Illinois.
2017 brought about some clearing up some confusion and a few changes to the IDMA:
One change is the two-year ban on modifications of a parenting allocation judgment. The two-year ban is for changes that affect parental decision -making responsibilities. The biggest change was seen in how child support is calculated. The updated law now looks to an “income sharing” approach as it looks to combine the income of both parents as if the child was still in an intact home and how many nights a child spends with a parent.
2019 changed how maintenance (formerly alimony) is calculated. The prior law looked to a party’s gross income. The updated law changes this to net income. Agreements or awards of maintenance made after January 1, 2019 are no longer taxable and payments made to the recipient are not able to be deducted when the paying party files his or her income taxes. The update also eliminates the term “permanent maintenance” for the wording of “indefinite maintenance.”
There was also a change to the child support portion of the IDMA. The use of the term “minimum” is disfavored because income-sharing is the current means to calculate child support.
Overview of IDMA
Declaration of Invalidity of Marriage. Illinois has done away with grounds for dissolution of marriage except for irreconcilable differences. The former grounds such as infidelity and impotence are eradicated.
Temporary Relief Provisions
The IDMA provides that either party may petition the Court for temporary maintenance and/or temporary child support. These petitions must be supported by financial affidavits with documentary evidence, such as pay stubs and income tax returns. If temporary child support and/or maintenance is awarded, it often is lower than what would be awarded in the final judgment.
Temporary Restraining Orders and Preliminary Injunctions
Temporary restraining orders and preliminary injunctions are used to preserve the status quo. They are not permanent, but can be used to prevent the transfer of real property, such as the marital home, and/or used to prevent the removal of children to a different jurisdiction.
Maintenance and Child Support
Maintenance is calculated using a formula that is calculated by the duration of the marriage. The longer the marriage, the greater the potential award for maintenance. The courts also look to several factors including, but not limited to, the income of the parties, property of the parties, and needs of the parties. The courts will also weigh the earning capacity of the parties, as well as lost opportunities one spouse may have suffered due to the marriage. The courts do not look to one single factor to determine maintenance, but will weigh each factor in its outcome determination. The following list enumerates the factors the court will balance in determining as to whether maintenance should be awarded to a party pursuant to 750 ILCS 5/504 of the IDMA:
- The income and property of each party, including non-marital property, and the financial obligations on the parties that would result due to a divorce
- The needs of each party
- The present and future earning capacity of each party
- Any impairment of earning capacity of a party seeking maintenance due to the party having foregone education or career opportunities due to the marriage
- Any impairment of the earning capacity against whom maintenance is requested
- The time required to allow the party requesting maintenance to obtain a level of education, training, and employment, and whether that party is able to support themselves with proper employment
- The impact of parenting responsibilities and the ability of the party to maintain employment
- The standard of living during the marriage
- Age, health, occupation, amount of income, skills, employability, estate, liabilities, and the needs of each party
- All sources of income, including public income such as disability and retirement income
- Tax consequences assessed to each party
- The contributions made by the party seeking maintenance to the education, training, career or license of the other party
- A valid agreement between the parties
- Any other factor the court finds to be just and equitable.
As discussed previously, the legislature changed how maintenance is categorized in the IDMA under 750 ILCS 5/504. Maintenance can now be described as: “fixed-term,” “indefinite,”, “reviewable,” or “reserved by the court.” The various kinds of maintenance categories are discussed below:
Fixed-Term Maintenance has a set end date that can be established by agreement or by the court. Fixed -Term maintenance is formerly known prior to the IDMA amendments as “rehabilitative maintenance.” This was payable for a fixed period of time so that the receiving spouse had some time to gain skills to be able to support themselves.
Reviewable Maintenance means that at the end of the stated maintenance period, a review can be conducted by the court to determine if the party that receives the maintenance award can continue to receive maintenance. To determine if maintenance should continue, the court will look the receiving party’s ability to obtain financial independence.
Indefinite Maintenance can be permanent maintenance unless certain statutory events occur that terminate maintenance under IDMA 750 ILCS 5//510, such as death of either party, or the re-marriage or cohabitation of the receiving party. These events will trigger the end of indefinite maintenance. Indefinite maintenance, as outlined in the statute, is appropriate for marriages that lasted more than twenty years.
Child support statutory guidelines have shifted to an income-sharing approach that is utilized to calculate support payments. The formula also takes into account parenting time (formerly known as “custody”) of the parties if the parents each have 146 overnight visits or more per year. The statutory guidelines, per 750 ILCS 5/505 of the IDMA lists the following statutory guidelines for determining child support:
- The court shall calculate a basic child support calculation obligation using these factors:
- Determine both parents’ monthly net income;
- Add the parties monthly net income together to determine the total monthly net income of the parents;
- Choose the appropriate amount from the schedule of basic child support obligations based on the parties’ monthly net income and number of children of the parties; and
- Calculate each parent’s percentage share of the basic child support obligation.
- The courts can deviate from the child support guidelines by examining other factors that are listed in the IDMA 750 ILCS 5/505:
- Extraordinary medical expenses to preserve the life or health of a party or a child;
- Expenses related to a child who has special medical needs;
- Any other factors the court determines that the statutory guidelines would not be appropriate after consideration of the best interest of the child.
Allocation of Parental Responsibilities
The term “custody” is no longer in use in the IDMA. Allocation of parental responsibilities is the terminology that is now in favor. Significant decision making concerning the child’s education, health, religious upbringing, and extracurricular activities can now be split amongst parents. Parties can do this by agreement or by leaving these issues for the court to determine. To determine which party gets which significant decision-making category, or all, the court will look to the standard of the best interests of the child. Under 750 ILCS 5/602.5 of the IDMA lists the factors the court will evaluate to determine what is the best interests of the child:
- The wishes of the child, accounting for the child’s maturity
- The child’s adjustment to his or her home, school, and community
- Mental and physical health of all parties
- The ability of the parents to cooperate to make decisions, or the level of conflict between the parties
- The level of each parent’s participation in previous significant decision making,
- Prior agreements or course of conduct between the parents related to decision making
- The wishes of the parents
- The child’s needs
- The distance between the parties’ residences, the cost and difficulty of transporting the child, the parent’s and child’s daily schedules, and the ability of the parents to cooperate
- Whether the factors listed Section 603.10 of the IDMA restricting parenting time apply
- The willingness and ability of the parents to foster a relationship of the child with the other parent
- Physical violence or a threat of physical violence by one of the parents to the child
- The occurrence of abuse against the child or other members of the child’s household
- Whether one parent is a sex offender, the nature of the offense, and if the parent participated in any treatment successfully participated in
- Any other factor the court finds to relevant to make a determination.
Parenting time now replaces the terms “custody” and visitation. Allocation of parenting time is determined also by the best interests of the child standard. The IDMA now favors equal parenting time between the parties. If the parties cannot agree to a parenting plan schedule, the court will weigh several statutory factors and consider the best interest of the child.
Recent Changes to Illinois Family Law
There are a few modifications for to Illinois Family Law which now permits a court to order the relocation (formerly “removal”) of a child on a temporary basis before a final allocation judgment is entered. The court will also use the best interests of the child standard to determine if relocating the child on a temporary basis is beneficial to the child.
One recent change that went into effect in 2022 allows for a party to seek from the other party the retainer fee for an attorney to assist in the litigation process under the interim attorney fees provision. Now a party that needs financial assistance from the other party to effectuate the litigation process can seek out a retainer fee under the interim attorney fees portion of the IDMA. The award of the retainer fee is to be paid to the opposing party’s attorney directly.
Though there have been no noteworthy changes to Illinois Family Law for 2024, we hope you found this article helpful in identifying any updates to the current law. If you have questions about your Illinois family law case, please contact O’Flaherty Law, at (630) 349-2458 and speak with one of our experienced family law attorneys. You can also fill out our confidential contact form and we will get back to you shortly.
While we serve most of Illinois, if you are in the Bolingbrook, IL area and looking for an experienced family law attorney feel free to contact us at:
400 N Schmidt Rd STE 202, Bolingbrook, IL 60440
(630) 328-0261
bolingbrook.il@oflaherty-law.com
.avif)
.svg){kind=small}
