A whole new game for divorce attorneys

Major changes in IMDMA will require some midnight oil

All in the Family

Celia Gamrath

Celia Gamrath is a Cook County Circuit Court judge in the Domestic Relations Division. The views expressed in this column are her own and not those of the circuit court.

November 2015

Substantial revisions of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (Public Act 99-90) and the Parentage Act (Public Act 99-85) are set to take effect on Jan. 1. Public Act 99-90 is a significant overhaul of the IMDMA; it amends virtually every aspect of it: Grounds, custody, visitation, maintenance, removal, 513 educational expenses, financial affidavits and attorney fees, just to name a few. Over the next few months, Dan Stefani and I will highlight some of the most significant changes to the IMDMA and Parentage Act.

Grounds Obliterated

One of the first major changes to the IMDMA is the elimination of fault grounds, such as mental and physical cruelty, desertion, adultery, drunkenness and drug use. All divorces and legal separations will be based on no-fault grounds of irreconcilable differences. If the couple has lived separate and apart for at least six months, there is an irrebuttable presumption of irreconcilable differences. The two-year waiting period is removed entirely.

Joint simplified divorce expanded

Another change consistent with Illinois’ overall goal of providing greater access to justice is to raise the income and marital property thresholds for joint simplified divorces and to allow those with Individual Retirement Accounts under $10,000 to proceed. Previously, litigants with any retirement benefits were ineligible.

Uniform financial affidavit created

We are all familiar with financial affidavits and disclosure statements used across the state in varying degrees and forms. Public Act 99-85 mandates a uniform financial affidavit form to be used statewide. The Illinois Supreme Court Commission on Access to Justice is working on the creation of this standardized form. Parties must take extra care in completing this form since significant penalties and sanctions attach against a party who intentionally or recklessly files an inaccurate or misleading financial affidavit. These affidavits, supported by documentary evidence, will become the cornerstone of summary hearings on temporary support and attorney fees.

Interim attorney fees

Under the new law, the court shall deal with requests for interim attorney fees on a summary basis using the uniform financial affidavits and considering the parties’ pleadings and all relevant statutory factors. A responsive pleading must set out the amount of all payments and retainers paid. Under the new law, it must also include costs incurred and indicate whether the costs are paid or not. The court is to use a new standardized form titled “Interim Fee Award Order” when granting attorney fees. The Illinois Supreme Court Commission on Access to Justice is working on this form.

Temporary relief expanded

Public Act 99-90 expands the court’s authority to grant temporary relief under 750 ILCS 5/501. During the pendency of a case, it is common for a party to ask the court to order the sale of a home or other asset as “temporary relief” under Section 501. The other side usually objects, arguing there is nothing temporary about the final sale of one’s residence and the court lacks jurisdiction to order such relief. Public Act 99-90 expressly grants the court discretion to order the purchase or sale of assets and borrowing of funds under Section 501, obviating concern over lack of jurisdiction.

No more custody and visitation

It’s time to get familiar with new lingo. Out with the old “custody” and “visitation” language and in with the new “allocation of parental responsibilities” and “parenting time.”

An “allocation judgment” (formerly a custody judgment) will allocate between parents the decision-making responsibility for each significant issue affecting the child, including education, health, religion and extracurricular activities. No longer will one custodial parent automatically make all major decisions for the child; these may be divvied up. A parent who is not allocated significant decision-making responsibility is entitled to reasonable parenting time (visitation) absent serious endangerment.

Within 120 days of serving a petition for allocation of parental responsibilities, the parties must file, jointly or separately, a proposed parenting plan (akin to a joint-parenting plan). The court may extend the time for filing a parenting plan and order mediation to assist the parties in completing the parenting plan.

The parenting plan shall include things such as the allocation of significant decision-making responsibilities; the child’s living arrangements and parenting schedule; mediation and notice provisions; each parent’s right of access to the child’s health, school and extracurricular records; each parent’s contact information and the child’s address for school enrollment; and transportation, communication, relocation and right of first refusal arrangements. If the parties cannot agree on a parenting plan, both parties will submit a parenting plan and the court will conduct a trial or hearing to determine whether the parenting plan is in the child’s best interests.

These are just a few highlights; more will be discussed in the coming months. It is critical for lawyers and judges to study Public Acts 99-90 and 99-85 and especially Part VI: Allocation of Parental Responsibilities, which replaces the former Custody section of the IMDMA and creates new rights, new duties, new deadlines and new elements of standing for nonparents seeking to exercise decision-making responsibilities and time with the child. It’s a completely new regime. You don’t want to be caught off guard in January.

For easy reference, here is a link to the public acts: ilga.gov/ legislation/publicacts/fulltext.asp?Name=099-0090&GA=99 (IMDMA) and ilga.gov/legislation/publicacts/fulltext.asp?Name=099-0085&GA=99 (Parentage Act).