Illinois Marriage and Dissolution of Marriage Act

In 2019, the comprehensive “Illinois Marriage and Dissolution of Marriage Act” (the “Act”) took effect. The Act made sweeping changes to Illinois divorce law. Through the Act, Illinois changed child custody and visitation requirements, as well as Illinois child support and spousal maintenance laws.

Child Custody Under the Act

The Act eliminates the term “custody.” It now refers to custody as an “allocation of parental responsibilities.” This refers to the parent a child lives with and the parent they visit. Different types of arrangements exist:

• Legal: This arrangement gives a parent the legal right to decide about the child’s upbringing. These can include decisions on a child’s education, religious upbringing, and medical care. Legal custody is usually given jointly, meaning both parents have equal rights to make these decisions.
• Physical: This involves the right to have a child physically live with you. “Sole” physical custody means that the one “custodial” parent has custody for most of the time. The other parent is typically permitted only child visitation rights. Modernly, courts are moving away from this arrangement unless the child is in clear danger in one parent’s household. Some courts grant generous visitation rights to the non-custodial parent.
• Joint: This is when parents agree to share decision-making and child-raising responsibilities. Joint custody may refer to joint legal custody, joint physical custody, or some mix of both.
• Bird’s nest: In this situation, the children live in the family home, and the parents take turns moving in and out.

How will the Allocation of Parental Responsibilities (Custody) be Determined in Illinois?

Before the change, Illinois courts determined custody by determining what was in the “best interests” of the child. That is still the standard, but the allocation of parental responsibilities (custody) now requires courts to take into consideration specific factors like:

• Health
• Education
• Religion
• Extra-curricular activities

Can I Receive Sole Custody Under the Act?

Yes, sole custody is possible. However, the court can award sole and joint custody according to categories or factors. For example, the responsibility of where a child attends school may be given to the mother or to whichever parent the child will be living with.

The responsibility of which extra-curricular activities the child participates in may be given to the father. Both parents will usually share the decision-making responsibility for the child’s health.

Visitation by Certain Non-Parents

Certain non-parents may request visitation with a child. The list of appropriate persons includes grandparents, great-grandparents, step-parents, and siblings of a minor child, age one or older. These individuals may bring a petition for visitation and electronic communication if (1) there has been an unreasonable denial of visitation by a parent and (2) that denial has caused the child undue mental, physical, or emotional harm, and (3) one of the following qualifying conditions exists:

• The child’s other parent is deceased or has been missing for at least 90 days;
• As a matter of law, one parent is incompetent (i.e., one parent has been judged incompetent by a judge);
• A parent has been incarcerated in jail or prison for more than 90 days immediately before filing the petition;
• The child’s parents have been granted a divorce or legal separation, or there is a pending dissolution, and at least one parent does not object to the grandparent, great-grandparent, step-parent, or sibling having visitation with the child; or
• The child is born to parents who are not married or living together, and the petitioner is a grandparent, great-grandparent, step-parent, or sibling of the child.

Child Support

The Illinois child support statute was amended to align federal tax law changes concerning child support and spousal maintenance.

• Gross State Income for Child Support Purposes: When calculating the amount of child support due, “gross income” now includes spousal maintenance if treated as taxable income under federal tax law.
• Net Income for Child Support Purposes: For calculating the parent’s child support obligation, “net income” now includes spousal maintenance if treated as taxable income under federal tax law.
• Spousal Maintenance Adjustment: If one parent pays spousal maintenance and child support, the spousal maintenance is now deducted from the parent’s after-tax income, with some exceptions.

Spousal Maintenance

As of January 1, 2019, maintenance is no longer tax-deductible to the payor spouse and no longer includable in the gross income of the recipient spouse. In addition,

1. Guideline or Non-guideline Spousal Maintenance Awards: The State of Illinois has developed economic guidelines for determining the amount of spousal maintenance. If applying state guideline maintenance amounts results in a combined maintenance and child support obligation that exceeds 50% of the parent’s net income, the court may determine non-guideline maintenance, non-guideline child support, or both.
2. Guideline Maintenance Awards: If the parties’ combined gross annual income is less than $500,000, and the payor has no obligation to pay child support or maintenance or both from a prior relationship, the amount of maintenance shall be calculated by taking 33 1/3% of the payor’s net annual income, minus 25% of the payee’s net annual income. The amount calculated as maintenance, however, when added to the payee’s net income, shall not result in the payee receiving an amount that is in excess of 40% of the parties’ combined net income.
3. Maintenance Findings: The court must state whether the maintenance award is fixed-term, indefinite, reviewable, or reserved by the court.
4. Gross income for Maintenance Purposes: Gross income means all income from all sources except for spousal maintenance payments in the pending proceedings.

Per the Act, an order for maintenance may be modified or terminated only upon showing a “substantial change in circumstances.” The enactment of the Act itself does not constitute a substantial change in circumstances warranting a modification.

Disposition of Property and Debts: Designation of Life Insurance Beneficiary

One important issue in a divorce is the division of property and debts, including life insurance policies and proceeds. The Act addresses the treatment of a life insurance beneficiary designation upon entry of a divorce judgment as follows:

• If a divorce judgment is entered after one of the parties has designated their spouse as a beneficiary under a life insurance policy, the designation of the party’s former spouse as a beneficiary is no longer effective unless:
  • The divorce judgment itself designates the former spouse as a beneficiary; or
  • The insured re-designates the former spouse as a beneficiary after the divorce judgment is entered; or
  • The ex-spouse is designated to receive the proceeds for the benefit of a child or a dependent of either former spouse.
• If a designation is not effective under one of these examples, the proceeds of the policy are payable to an alternative beneficiary or, if there is not a named alternative beneficiary, to the estate of the insured.

The Act protects the insured against liability for paying an ex-spouse on a life insurance policy when the designation was invalid. An insurer who pays the proceeds of a life insurance policy to the former spouse based on a designation that is not effective is liable for payment of the proceeds to the person or estate only if:

• Before making payment of the proceeds to the designated beneficiary, the insurer received written notice from an interested party that the beneficiary designation is not effective under the statute; and
• The insurer has not filed an interpleader (i.e., a lawsuit to compel two parties to litigate a dispute).

Note: the provisions of the new statute do not apply to life insurance policies subject to regulation under ERISA, the Federal Employee Group Life Insurance Act, or any other federal law that preempts application.

Do I Need a Lawyer to Determine Custody, Child Support and Other Divorce Issues?

Yes. The Act’s new laws can be confusing. Contact a local Illinois family lawyer to understand more about your rights and responsibilities under the Act.

An attorney can advise you on how to proceed and inform you of the possible outcomes and consequences of each option. Family law is a specialized field, and a simple mistake on your paperwork can have life-long ramifications.