Illinois Divorce Law: An Introduction

Written by Chicago-based Litigator, Brendon J. Hammer, Esq.

Illinois’ divorce laws are found in the Illinois Marriage and Dissolution of Marriage Act (IMDMA) which contains specific sections regarding virtually every aspect of a divorce case--from property, child support, and maintenance, to college expenses, parenting time, and decision-making rights. Although the IMDMA has been in place for nearly 40 years, it has undergone a number of revisions and amendments, and recently, has significantly changed longstanding Illinois law in a number of crucial areas.

Financial Issues

Property

In Illinois, when a couple divorces, a court will allocate marital property “equitably.” Although equitable distribution can mean equal distribution, there is no presumption either in favor of, or against, a 50/50 division of marital assets. Instead, the law establishes a list of twelve factors for a court to consider in awarding marital property and does not permit consideration of fault in such an award. Some of these factors include, but are not limited to:

• Duration of the marriage
• Whether maintenance is awarded
• Contributions to the marital estate
• The economic circumstances of the parties
• The age/health/employability of the parties
• The living circumstances of any children of the parties
• The reasonable opportunity of each party to acquire assets and income in the future

Before a court can allocate marital property, however, it must first characterize that property as either marital or non-marital property. In Illinois, all property acquired during the marriage is presumed to be marital property. That presumption can be overcome by showing that the property falls within one of the non-marital property exceptions provided in Illinois law. These include but are not limited to:

• Gifts
• Inheritances
• Property acquired prior to the marriage
• Property acquired in exchange for premarital property
• Property acquired by using non-marital property as collateral for a loan that was used for property acquired during the marriage
• The increase in value to non-marital property
• Property excluded via prenuptial or postnuptial agreements

One additional unique feature of Illinois law concerns income from non-marital property. In many states, income from non-marital or separate property will be marital or community property. In Illinois, income from non-marital property constitutes non-marital property provided it is “not attributable to the personal effort of a spouse.”

Also, Illinois law permits a court to consider the “dissipation” of marital property by a spouse in making an award of marital property. Dissipation, as a matter of law, is the expenditure of marital funds for a purpose unrelated to the marriage at a time when the marriage is undergoing an irretrievable breakdown. In other words, money that a husband or wife spends for a girlfriend or boyfriend, for lavish expenditures for only the spouse alone, for drugs or gambling, etc., may all be considered by a court. Importantly, only dissipation occurring within three years of when a party knew or should have known of the expense, and in no event prior to five years before the divorce filing may be considered.

Child Support

Until recently, Illinois child support was awarded pursuant to a percentage-of-net-income guideline framework. For example, a parent paying child support for one child would, typically, pay 20% of his or her net income to the recipient spouse. Currently, Illinois has implemented an Income Shares model for child support. This approach has fundamentally reconfigured child support in Illinois. Now, the income of both parties is considered and the amount of overnight parenting time with a child is a factor that can directly impact the amount of the child support award. The method for calculating child support where combined annual gross incomes are less than $500,000 per year now requires the court to:

• Determine each parent’s monthly net income.
• Add the parents’ monthly net incomes to determine a combined total.
• Select the corresponding amount from the schedule of basic obligations based on the combined total income and number of children.
• Calculate each parent’s percentage share of the Basic Child Support Obligation.

In addition to a Basic Child Support Obligation, the court may award sums for school and extracurricular activities, health care, insurance, and childcare expenses. There are a number of helpful calculators that can fairly accurately estimate what a Basic Child Support Obligation would be.

Maintenance (Alimony)

Illinois law awards maintenance (formerly known as alimony) based upon a consideration of a list of factors. In general, until recently, maintenance awards were meant to provide for a recipient spouse consistent with the “standard of living” established during the marriage. In addition, the law did not provide directly for any time-limit upon that maintenance award; and, in marriages of over ten years, any such award could not be made terminating or limited in duration at the time it was first awarded.

Currently, the law regarding maintenance awards has undergone several distinct changes. First, for couples where the combined income of both parties is less than $500,000, the law establishes a presumptive guideline percentage for a court to award the recipient spouse. Next, the law establishes a time duration for maintenance awards. Finally, a court is now free to limit maintenance awards in marriages over ten years in length.

Presently, if the combined gross annual income of the parties is less than $500,000 and the payor has no obligation to pay child support and/or maintenance from a prior relationship, maintenance awards will be 33.3% of the payor's net annual income minus 25% of the payee's net annual income, unless the court makes a finding that the application of the guidelines would be inappropriate. The amount calculated, however, when added to the net income of the payee, shall not result in the payee receiving an amount that is in excess of 40% of the combined net income of the parties. The duration of an award is calculated by multiplying the length of the marriage at the time the action was commenced by a percentage that’s dependent on the number of years the couple was married.

College Expenses and Support for Disabled Children

In Illinois, emancipated or non-minor children of divorced parents have a statutory right to financial contribution from their parents for college expenses. That award can be made from property or income of either or both parents. These expenses include not only tuition, but also fees, books and supplies, housing and meal expenses, medical and dental expenses and the reasonable living expenses of the child during the academic year and periods of recess. However, with respect to tuition, housing, and meals, the maximum obligation of parents is capped or limited to the cost for in-state tuition and fees at the University of Illinois at Champaign-Urbana. Similarly, housing and meal expenses are tied to the cost for a double-occupancy room with a standard meal plan in a residence hall at the University of Illinois at Champaign-Urbana.

It is possible, based upon “good cause shown” for a court to award sums in excess of these limitations. In addition, the law also provides for the payment of support for non-minor children with disabilities pursuant to a series of express factors.

Attorney Fees

In order for both parties to participate meaningfully in an Illinois divorce case, the IMDMA establishes a set of specific rules for the award of attorney fees. Known colloquially as a “level playing field” law, the IMDMA attempts to ensure that neither spouse can use attorney fees as a means to obtain leverage and advantage in court.

In general, attorney fee awards are treated as an advance against a party’s ultimate share of the marital estate. However, recognizing that other financial factors and circumstances may make such an approach inequitable, the law also permits a party, at the conclusion of a case, to seek contribution to their attorney fees from the other party based upon a list of considerations found in the IMDMA.

Child-Related Issues

Illinois awards parenting time of a child (formerly known as “visitation”) based upon a series of factors, all of which rest upon a “best interests” standard. In Illinois, unlike certain other states, there is no statewide parenting time order or template or schedule, and a court will fashion a schedule based upon the facts of each case. In general, a court considers the following seventeen factors:

• The wishes of each parent seeking parenting time.
• The wishes of the child, taking into account the child's maturity and ability to express reasoned and independent preferences.
• The amount of time each parent spent performing care-taking 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.
• Any prior agreement or course of conduct between the parents relating to care taking functions with respect to the child.
• 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.
• The child's adjustment to his or her home, school, and community.
• The mental and physical health of all individuals involved.
• The child's needs.
• 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.
• Whether a restriction on parenting time is appropriate.
• 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.
• The willingness and ability of each parent to place the needs of the child ahead of his or her own needs.
• The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
• The occurrence of abuse against the child or other member of the child's household.
• 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.
• 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.
• Any other factor that the court expressly finds to be relevant.

Decision-Making Responsibilities

Illinois law allocates “significant decision making responsibilities” (formerly known as custody rights) in four specific areas based upon the child’s “best interests.” Generally, such rights pertain to: Education, Health, Religion and Extracurricular Activities. In order to make an allocation of those decision making rights and responsibilities, a Court will consider a list of fifteen specific criteria including but not limited to:

• The wishes of the child, taking into account the child's maturity and ability to express reasoned and independent preferences.
• The child's adjustment to his or her home, school, and community.
• The mental and physical health of all individuals involved.
• 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.
• The level of each parent's participation in past significant decision-making with respect to the child;
• Any prior agreement or course of conduct between the parents relating to decision-making with respect to the child.
• The wishes of the parents.
• The child's needs.
• 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.
• Whether a restriction on decision-making is appropriate.
• The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
• The physical violence or threat of physical violence by the child's parent directed against the child.
• The occurrence of abuse against the child or other member of the child's household.
• 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.
• Any other factor that the court expressly finds to be relevant.

Restrictions on Parenting Time and Decision-Making Responsibilities

In order to restrict decision-making responsibilities or parenting time with the child, the party seeking such a restriction must demonstrate beyond a preponderance of evidence that a “serious endangerment” to a child’s mental, moral, or physical health exists or it must be shown that a parent “significantly impaired” a child’s emotional development.  After such a showing is made, a court may enter orders that:

• Reduce, eliminate of adjust parenting time or decision making responsibilities.
• Supervise parenting time.
• Require exchange of children at a protected setting.
• Restrain communication or physical proximity between parents.
• Require abstention from possession or use of alcohol or non-prescribed drugs during and immediately prior to parenting time.
• Restrict the presence of specific third-parties during parenting time.
• Require the posting of a bond to secure return of a child following parenting time or secure other court-ordered performance.
• Require treatment programs for physical abuse and substance abuse.

Therapy

The IMDMA permits a court to order individual counseling for a child, family counseling for one or more of the parents and the child, or parental education for one or more of the parents. In order to make such a determination, the court must find that certain criteria are met, including but not limited to, abuse of parenting time, endangerment to heath, impairment of emotional development, and violation of a judgment regarding conduct affecting or in the presence of a child. Importantly, all court-ordered therapy sessions are confidential and any communications made in counseling shall not be used in litigation between the parties or relied upon by any expert appointed by the court or retained by any party.

Relocation of a Parent with a Child

Illinois law permits a parent who has equal parenting time (or more) to relocate to another state under certain circumstances. Currently, such a relocation (formerly known as “removal”) will be permitted where the parent requesting the relocation establishes facts that meet eleven specific criteria in the IMDMA. The assessment of these criteria is, like most matters in Illinois law, made pursuant to a “best interests” standard.

The relocation criteria are as follows:

• The circumstances and reasons for the intended relocation.
• The reasons, if any, why a parent is objecting to the intended relocation.
• The history and quality of each parent's relationship with the child and specifically whether a parent has substantially failed or refused to exercise the parental responsibilities allocated to him or her under the parenting plan or allocation judgment.
• The educational opportunities for the child at the existing location and at the proposed new location.
• The presence or absence of extended family at the existing location and at the proposed new location.
• The anticipated impact of the relocation on the child.
• Whether the court will be able to fashion a reasonable allocation of parental responsibilities between all parents if the relocation occurs.
• The wishes of the child, taking into account the child's maturity and ability to express reasoned and independent preferences as to relocation.
• Possible arrangements for the exercise of parental responsibilities appropriate to the parents' resources and circumstances and the developmental level of the child.
• Minimization of the impairment to a parent-child relationship caused by a parent's relocation.
• Any other relevant factors bearing on the child's best interests.

It is important to note that relocation does not apply to every residential move involving a child. As a matter of law, relocation refers to:

• Where a child who resides in Cook, DuPage, Kane, Lake, McHenry or Will County moves to a new residence more than 25 miles from the current residence.
• Where a child moves from a residence in a county other than those listed above to a residence more than 50 miles from his or her current residence.
• Where a child moves to residence outside of Illinois that is more than 25 miles from his or her current residence.

Brendan Hammer is an experienced courtroom litigator who represents a variety of individuals from executives and entrepreneurs, to medical/legal/creative professionals, to political figures, professional athletes and their spouses. He concentrates his practice on the litigation and negotiation of complex family law matters. Brendan is certified in divorce mediation through Northwestern University and is on the Faculty of the National Family Law Trial Institute. He serves on the Advisory Council of the David Lynch Foundation (Chicago) and the Advisory Board of Family Law Center of the DePaul University College of Law.

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