3 part series originally published September 16, 2015, September 23, 2015 & October 6, 2015
While legislative changes to Illinois Family Law may not rise to the level of Mark Twain’s apprehensions, the changes do add to the complexity and confusion that is divorce, custody, support and paternity under Illinois law. The changes are included in several hundred pages of legislation, so we will offer short items here addressing the various significant (or curious) changes or issues.
Ending lawsuits over interfering with your marriage or promise to marry.
Illinois has three statutes going back decades, if not centuries, to seek damages from someone who interfered with a marriage or promise to marry – Alienation of Affections, Breach of Promise, and Criminal Conversation. These laws had been limited to allowing only actual economic damages, not allowing any recovery for the “injury” of having a marriage or promise to marry disrupted, such that the statutes were of little use as they were. The recent legislation abolishes these types of lawsuits for any injury after January 1, 2016. Therefore, if you believe you have a claim against someone for disrupting your marriage or engagement, you would need to pursue the matter promptly before the statute of limitations expires.
“What’s in a name? That which we call a rose by any other name would smell as sweet;” - William Shakespeare, Romeo and Juliet
It is unclear whether the legislature was making a nod to political correctness or an effort to provide uniform terminology, but the 2015 legislative changes have taken what has been referred to over the years as child custody, child physical custody, etc and created a new term – parental responsibility allocation – which is probably as good as term as any, and better than “toddler time-share.” The physical custody or visitation concept is now “parenting time.”
On the flip side, the ominous term “non-custodial parent” has been eliminated from the statute, although replaced with the term “supporting parent”, meaning whoever is paying child support. However, it will remain to be seen if “non-custodial parent” as a derogatory epithet disappears from the lexicon of divorced parents.
As with any in legislative terminology, this name change, as well as others in the 2015 changes, will open up debate by counsels and courts as to what do these changes mean. Unfortunately, there is little public legislative record as to what is intended by these changes. Most of the changes were proposed by committees of lawyer groups, which groups’ explanations have limited legal weight.
Illinois a six month waiting period, no fault divorce state as of January 1, 2016
One major substantive change is the elimination of all other grounds for divorce, providing solely for irreconcilable differences and reducing the two year waiting period to six months. While most divorces tended to fall under the irreconcilable differences category, this change now eliminates the ability to obtain an immediate divorce based upon mental or physical cruelty and all parties will have to attest to six months of living separate lives before a divorce can be entered. Of course, a party who is victim for mental or physical abuse can obtain temporary or interim relief pending the six month waiting period.
Ending lawsuits over interfering with your marriage or promise to marry.
Illinois has three statutes going back decades, if not centuries, to seek damages from someone who interfered with a marriage or promise to marry – Alienation of Affections, Breach of Promise, and Criminal Conversation. These laws had been limited to allowing only actual economic damages, not allowing any recovery for the “injury” of having a marriage or promise to marry disrupted, such that the statutes were of little use as they were. The recent legislation abolishes these types of lawsuits for any injury after January 1, 2016. Therefore, if you believe you have a claim against someone for disrupting your marriage or engagement, you would need to pursue the matter promptly before the statute of limitations expires.
“What’s in a name? That which we call a rose by any other name would smell as sweet;” - William Shakespeare, Romeo and Juliet
It is unclear whether the legislature was making a nod to political correctness or an effort to provide uniform terminology, but the 2015 legislative changes have taken what has been referred to over the years as child custody, child physical custody, etc and created a new term – parental responsibility allocation – which is probably as good as term as any, and better than “toddler time-share.” The physical custody or visitation concept is now “parenting time.”
On the flip side, the ominous term “non-custodial parent” has been eliminated from the statute, although replaced with the term “supporting parent”, meaning whoever is paying child support. However, it will remain to be seen if “non-custodial parent” as a derogatory epithet disappears from the lexicon of divorced parents.
As with any in legislative terminology, this name change, as well as others in the 2015 changes, will open up debate by counsels and courts as to what do these changes mean. Unfortunately, there is little public legislative record as to what is intended by these changes. Most of the changes were proposed by committees of lawyer groups, which groups’ explanations have limited legal weight.
Illinois a six month waiting period, no fault divorce state as of January 1, 2016
One major substantive change is the elimination of all other grounds for divorce, providing solely for irreconcilable differences and reducing the two year waiting period to six months. While most divorces tended to fall under the irreconcilable differences category, this change now eliminates the ability to obtain an immediate divorce based upon mental or physical cruelty and all parties will have to attest to six months of living separate lives before a divorce can be entered. Of course, a party who is victim for mental or physical abuse can obtain temporary or interim relief pending the six month waiting period.
The State’s determination as to parental responsibilities, or how the village would raise children.
The most complex of the 2015 changes is how the State of Illinois will now define, at least for divorced or never-married parents, what constitutes parenting. The definitions section sets out the State’s parenting expectations and bears reciting verbatim:
(c) "Care taking functions" means tasks that involve interaction with a child or that direct, arrange, and supervise the interaction with and care of a child provided by others, or for obtaining the resources allowing for the provision of these functions. The term includes, but is not limited to, the following:
(1) satisfying a child's nutritional needs; managing a child's bedtime and wake-up routines; caring for a child when the child is sick or injured; being attentive to a child's personal hygiene needs, including washing, grooming, and dressing; playing with a child and ensuring the child attends scheduled extracurricular activities; protecting a child's physical safety; and providing transportation for a child;
(2) directing a child's various developmental needs, including the acquisition of motor and language skills, toilet training, self-confidence, and maturation; (3) providing discipline, giving instruction in manners, assigning and supervising chores, and performing other tasks that attend to a child's needs for behavioral control and self-restraint; (4) ensuring the child attends school, including remedial and special services appropriate to the child's needs and interests, communicating with teachers and counselors, and supervising homework; (5) helping a child develop and maintain appropriate interpersonal relationships with peers, siblings, and other family members;| (6) ensuring the child attend medical appointments and is available for medical follow-up and meeting the medical needs of the child in the home; (7) providing moral and ethical guidance for a child; and (8) arranging alternative care for a child by a family member, babysitter, or other child care provider or facility, including investigating such alternatives, communicating with providers, and supervising such care. (d) "Parental responsibilities" means both parenting time and significant decision-making responsibilities with respect to a child. (e) "Parenting time" means the time during which a parent is responsible for exercising care taking functions and non-significant decision-making responsibilities with respect to the child. (f) "Parenting plan" means a written agreement that allocates significant decision-making responsibilities, parenting time, or both. * * * (k) "Significant decision-making" means deciding issues of long-term importance in the life of a child. The lengthy definition of “care taking functions” appears to be for the purpose of defining what is expected to be done during “parenting time” and, conversely, to determine when someone has not properly fulfilled the role of a parent for purposes of deciding which parent should have custody. It will be of interest to see whether this detailed definition will be used by the courts as a checklist, as opposed to a philosophical statement.
Parenting Plan Requirement
The Illinois law now requires that in custody cases the parties must submit their proposed parenting plans within 120 days of the filing of the case. While not an unreasonable requirement, it will require parents to move quickly to assess the custody issues and expectations, which may be significantly different from how the parents operated when together (or may be colored by the high emotions of the divorce or breakup process). The changes now require that one parent be anointed has having the majority of parenting time, even if the parents have equal parenting time, for the stated purpose of satisfying other laws. Previously the law required the primary residence be designated, which was independent of the schedule. The changes also require an “allocation” of decision making, which could be inferred to mean that decision making cannot be “shared”.
But wait, there's more!
There are numerous other changes of interest to lawyers or applicable to limited situations, which one may review by clicking the below link to the public act. The changes to the law are shown as underlined or stricken out.
http://www.ilga.gov/legislation/publicacts/99/099-0090.htm