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ISBA Statehouse Review for the week of Aug. 8: Rewrite of Illinois' Marriage Act

ISBA Director of Legislative Affairs Jim Covington reviews legislation in Springfield of interest to ISBA members. In this episode he provides an in-depth overview of House Bill 1452, the complete rewrite of Illinois' Marriage and Dissolution of Marriage Act. Much more information is available below the video.

Rewrite of Illinois’ Marriage Act

House Bill 1452 (Kelly Burke, D-Evergreen Park) is a complete rewrite of the Illinois Marriage and Dissolution of Marriage Act that may be acted on in the fall veto session. This article is a summary of that bill.

You may want to download a copy of this 186-page bill to review it. It may be found at the General Assembly’s website at www.ilga.gov/ . I find that the PDF version is easier to read and usually select that option for that reason.

Terminology. Courts will no longer award custody or visitation under this bill. Rather, courts will allocate parental responsibilities to include parenting time. A parent may ask the court for permission to relocate with a minor child instead of removing the child. Interestingly, it continues to use the lawyerism dissolution of marriage. Have any of you ever heard this process referred to as anything other than a divorce?

Grounds. House Bill 1452 includes only one ground for dissolution—that irreconcilable differences have caused the irretrievable breakdown of the marriage, and that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family.[1] The current six-month waiting period for this ground is repealed, but if the parties are separated for six months it creates an irrefutable presumption that irreconcilable differences exist.[2]

Presumption of residential parenting time. House Bill 1452 creates a rebuttable presumption in every case that it is in the best interest of a child that each parent should be allocated not less than 35% residential parenting time.[3] A court does have authority to restrict parental responsibilities to protect a child’s mental, moral, or physical, or emotional health.[4]

Allocation of parental responsibilities. House Bill 1452 requires the court to presume that it is in the child’s best interests to allocate significant decision-making responsibilities to each parent if each parent had been exercising significant decision-making responsibilities for the child (1) over the prior 24 months preceding the filing of the petition or (2) since the child’s birth if the child is under the age of two.[5]

Parenting Plan. All parents, within 90 days after service or filing of a petition for allocation of parental responsibilities, must file with the court a separate or joint proposed parenting plan supported by an affidavit or affidavits.[6]If the court doesn’t approve a joint parenting plan, it must make express findings justifying its refusal to do so. If the parties can’t agree on a joint plan, they must submit separate plans. A rebuttable presumption is created that the child’s best interests are served by awarding a time-sharing arrangement consisting of an allocation of not less than 35% residential time for each parent. A parenting plan must contain at a minimum information meeting 14 statutory criteria.[7] If the court is forced to choose between the separate parenting plans, it must select the plan that maximizes the child’s relationship and access to both parents. The court retains discretion to determine exceptions to this directive if warranted by individual facts and circumstances but must provide written findings of fact and conclusions of law when making such exceptions.[8]

Delays in judgments. House Bill 1452 makes two changes for how judgments are handled. (1) Requires the court to enter a judgment at the conclusion of the case. It prohibits it from being entered after hearing the testimony on the grounds only.[9] (2) Requires the court to enter a judgment of dissolution of marriage within 60 days of the closing of proofs unless the court enters an order specifying good cause that gives it an additional 30 days.[10]

Child support. The only change made here is substitution of the term supporting parent for non-custodial parent. The supporting parent is the parent with the majority of residential responsibility of the child.[11]

Joint petition for simplified dissolution. It changes the criteria for filing a joint petition for simplified dissolution as follows:[12]

  • Neither party may have an interest in “retirement benefits.”
  • The total FMV of all marital property, after deduction of encumbrances, is less than $50k.
  • The combined gross annualized income from all sources is less than $60k.
  • Neither party has a gross annualized income from all sources in excess of $30k.

Marital settlement agreements. A § 502 marital settlement agreement, which may include educational expenses, must be in writing or it’s not valid.[13] The terms of an agreement incorporated into a judgment trump any conflict between its terms and prove-up testimony.[14] Concerning modification of an agreement, property provisions are never modifiable; child support, parental responsibilities, maintenance, and educational expenses are modifiable on a substantial change of circumstances. The parties may agree that maintenance is non-modifiable in amount, duration, or both.[15]

Property. Among the many changes made to § 503 on division of property and debts, two will be noted here. (1) Requires the party alleging that something isn’t marital property to prove it by clear and convincing evidence.[16] (2) If the court doesn’t divide the property on a 50% basis, it must make specific findings of fact as why it deviated from that directive.[17]

Maintenance. Among the many changes to § 504 on maintenance, three will be noted here. (1) If House Bill 1452 is enacted, an order for unallocated maintenance and child support may not be entered.[18] This doesn’t affect previously entered unallocated orders. (2) The court may secure a maintenance award by requiring the payor to buy an appropriate amount of life insurance and name the recipient spouse as the beneficiary.[19] (3) If the court changes an order of maintenance, House Bill 1452 requires the court to make a record of the specific factual findings that support this change.[20]

Educational expenses. Among § 513’s changes are the following:

  • Educational expenses under this Section must be incurred no later than the student’s 23rd birthday unless otherwise agreed to by the parties.
  • Caps the expenses for tuition, fees, housing, and meals to what is charged at the University of Illinois at Champaign-Urbana. This cap doesn’t include other expenses such as medical expenses and other reasonable living expenses.
  • Support under this Section ends when the student fails to maintain a “C” average (unless illness or otherwise extenuating circumstances), becomes 23 years of age or older, receives a bachelor’s degree, or marries. It doesn’t terminate the court’s authority under this Section if the child joins the military, becomes pregnant, or is incarcerated.
  • Children are not third-party beneficiaries and not entitled to file a petition for contribution.
  • Relief under § 513 is retroactive to the date of filing of the petition.

Non-minor disabled child. A new section (§ 513.5) is created for the support of a non-minor disabled child. The definition of disabled is borrowed from the Americans with Disabilities Act. Unless an application is made for § 513 support for a disabled child, the disability must have arisen before the child attained majority.

Modification. The general rule is that a court is required to modify a parenting plan or allocation judgment if necessary to serve the child’s best interests if the court finds, by a preponderance of the evidence:

  • a substantial change of circumstances has occurred with the child or of any parent caused by facts that have arisen since the entry of the existing parenting plan or allocation judgment or were not anticipated in the plan or judgment; or
  • the existing allocation of parental responsibilities seriously endangers the child’s physical, mental, moral, or emotional health.[21]

The court may modify a parenting plan or allocation judgment without a showing of changed circumstances if it is in the child’s best interests and any of the following circumstances occur:

  • The modification is minor.
  • The modification reflects the actual arrangement under which the child has been living (without parental objection) for the six months preceding the filing of the petition for modification.
  • The modification is necessary to modify an agreed parenting plan or allocation judgment that the court would not have approved or ordered if the court had been aware of the circumstances at the time of the order or approval.

Relocation. Relocation is a substantial change of circumstances for modifying a judgment.[22] Relocation is defined as “a change of residence of more than 25 miles for more than 90 days that significantly impairs a parent’s ability to exercise the parental responsibilities that the parent has been exercising or is entitled to exercise under a parenting plan or allocation judgment.”[23] Only a parent who has been allocated a majority parenting time may seek to relocate with a child, except that when parents have equal parenting time, either parent may seek to relocate with a child. House Bill 1452 provides a procedure for notice and objection of intent to relocate.

Effective date. House Bill 1452 has no stated effective date; therefore, if it is passed in veto session, it probably will become law on June 1, 2014. It would then apply to these proceedings commenced on or after July 1, 2014: new proceedings, all pending actions, and all proceedings in which modification is sought of a judgment or order entered before July 1, 2014.[24]


[1] Section 5/401(a).

[2] Section 5/401(a-5).

[3] Section 5/102(7)(E); 5/602.10(e).

[4] Section 5/603.10.

[5] Section 602.5.

[6] Section 602.10.

[7] Section 602.10(f).

[8] Section 602.10(h).

[9] Section 5/403(e).

[10] Section 5/413(a).

[11] Section 5/505.

[12] Section 5/452.

[13] Section 502(a); Section 502(g).

[14] Section 502(b). 

[15] Section 502(f).

[16] Section 503(a).

[17] Section 503(d).

[18] Section 504(b-2).

[19] Section 504(b-6).

[20] Section 510(g).

[21] Section 610.5.

[22] Section 609.2.

[23] Section 5/600.

[24] Section 5/612.

Posted on Aug 08, 2013 by Chris Bonjean | Comments (6)
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Member Comments

Sum up this bill, and especially the "grounds" issue: Making divorce easier. Making the choice to marry less consequential, less weighty, less of a somber or sacred commitment. More divorces. More children as victims. But our culture values sexual freedom more than children, so it will probably pass.
I'm surprised that there are no significant changes to the child support section given the major changes in the parenting time provisions.
The entire bill needs to be striken except for the grounds change. What a joke. Is the time the child sleeps count toward their 35% or the time at school? This is ridiculous. Sounds like a non-custodial parent trying to reduce his child support because he has the 35% of the time. The person who wrote this is not thinking of the children!!!
My name is André Katz. I am a principal of Katz & Stefani family law firm with our main office located in Chicago, and I was chairman of the Illinois Family Law Study Committee ("IFLSC"). In 2008, based on my extensive experience in family and matrimonial law, I was appointed by House Speaker Michael Madigan to lead the bipartisan review and revision of Illinois’ outdated Marriage and Dissolution of Marriage Act, which was passed in 1977. The overhaul of our state’s marriage and divorce laws was long overdue. Society and family dynamics have changed dramatically in the past 35+ years. Three decades ago, it was usually the mother’s job to care for the kids, while the father provided financial support. Marriage was seen as a contract that should not be broken, and if either spouse or a third party caused a breakup, they could be held responsible in a court of law. Simply put: Illinois current marriage and divorce laws are outdated and no longer fully meet the needs and lifestyles of modern day families. Today, in many if not most families, both parents work, and both share the financial and emotional responsibilities of parenting. The IFLSC accepted that marriages don’t always work out, and when a divorce takes place, the focus should be on the needs of the children, rather than placing blame. My prime objective was to ensure that the process employed in creating and drafting the "new and improved" Illinois Marriage and Dissolution of Marriage Act was as fair and transparent as possible. The bipartisan committee included an equal number of appointees by the House Majority and Minority Leaders. The seriousness of this endeavor was evidenced by committee appointees from the Illinois Supreme Court. The Illinois Child Support Advisory Committee also provided two appointees. Members of every major bar association in Illinois were included in the review process, along with judges (including two former Chief Judges of the Cook and Lake County domestic relations divisions, namely Benjamin S. Mackoff and Jane D. Waller), family law experts, Illinois State Representatives, attorneys, accountants, professors and other experts with extensive and diverse experience in family law. We spent hundreds of hours examining tremendous amounts of legal data, and we reviewed thousands of pages of written information and evidence. We conducted 4 public hearings where judges, experts, professors, child psychiatrists and others with diverse and extensive experience in all aspects of family law testified (two in Chicago, one in Springfield and one in Waukegan). As Chairman, I initially created "pods" to study and debate each area of family law. Each pod was not only comprised of members of both political parties, but was as diverse as possible in terms of background and from where they came from within the state (i.e., downstate, Chicago, northern, southern and western suburbs...). Each pod spent tremendous time and effort in debating and formulating proposals that were submitted to the entire IFLSC and then debated at approximately 20 public meetings. The initial proposals were submitted to the Legislative Research Bureau in March 2011 for purposes of drafting the proposed statute (HB 1452). The memos were posted when they were submitted and are available for review and download at www.katzstefani.com under the "Illinois Family Law Study Committee” link. Also, in order to make sure that the public had more than ample time to review and understand the proposals, the bill was introduced in 2012 even though it was understood that it would probably not be taken up in that session in order for the public, attorneys and judges to have ample time to review, study and comment about the bill. HB 1452 is virtually identical to what was filed in May, 2012. The changes that were submitted in January 2013 can be found at the same link. It is also important to note that many members of the ISBA's Family Law Committee were appointed to the IFLSC and they were informed of what was transpiring throughout the process. In this regard I was in constant contact with Mr. Covington throughout the process. I would also like to take the opportunity to address the comment about child support. In fact, the IFLSC has recommended a change from a "guideline approach" to a "shared income approach" which considers the income of both parties, and the time spent with each party. HFS has agreed to implement the shared income approach, and has commissioned the requisite economic study to implement this change. When that is concluded, the child support provisions of the statute can and will be implemented. This exhaustive and exhilarating process produced House Bill 1452, the revised and modernized Illinois Marriage and Dissolution of Marriage Act. As I am sure you can all understand, it is virtually impossible for one bar organization to come to a consensus let alone all the bar organizations. But that was not the purpose or mission of the IFLSC. Rather, the mission was to re-write the outdated Illinois Marriage and Dissolution and Marriage Act that was enacted in 1977, taking into consideration the diverse perspectives and experiences of the members appointed by Speaker Madigan, Minority Leader Cross, the Illinois Supreme Court and the Illinois Child Support Advisory Committee. I truly believe that is exactly what we accomplished and hope that all of you and the residents of the state will agree and benefit from the vastly improved statute. If anybody has any questions about HB 1452 please feel free to email me at akatz@katzstefani.com and I will get back to you as soon as possible.
Hello Mr Katz, Thank you for your explanation of the process and logic behind the development of this bill. I think it includes changes in the law that are long overdue and will serve the people of Illinois well. Thanks for your hard work !

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