Statute, jurisdiction, and venue
An Illinois court has subject matter jurisdiction to enter a judgment of dissolution of marriage if either party has maintained Illinois residency for 90 days by the date of judgment. There is no pre-filing waiting period 750 ILCS 5/401.
Proceedings shall take place in the county where either party resides. If neither party resides in the county where the initial pleading is filed, the petitioner shall file a written motion seeking an order waiving the venue requirement. This must be heard before any other issue is taken up by the court. 750 ILCS 5/104.
Declaration of invalidity of marriage
Illinois law provides for the declaration of the invalidity of a marriage, rather than annulment. The statute sets strict requirements for declaring a marriage invalid. As discussed below, even when a marriage is declared to be invalid, some of the consequences of marriage continue 750 ILCS 5/301. Not many people’s circumstances meet the legal requirements for a declaration of invalidity of marriage. Before alleging fraud regarding the essentials of marriage, check caselaw; this ground has been strictly construed by Illinois courts.
Grounds for declaring a marriage invalid
- A party lacked the capacity to consent to the marriage, such as lack of mental capacity or incapacitation by drugs or alcohol;
- Marriage was prohibited by statute 750 ILCS 5/212;
- Marriage was induced by fraud or duress regarding the "essentials of marriage";
- A party lacked the physical capacity to consummate the marriage by sexual intercourse and the other party did not know of the incapacity at the time of the marriage ceremony; and
- One of the parties was 16 or 17 when married and did not have the consent of her parents, guardian or judicial approval.
Prohibited marriages are described by 750 ILCS 5/212(a)(1) – (4). A marriage is prohibited if:
- The marriage was entered into prior to the dissolution of an earlier marriage of one of the parties;
- The marriage is between an ancestor and a descendant or between a brother and sister, whether the relationship is by the half or the whole blood or by adoption;
- The marriage is between an uncle and a niece or between an aunt and a nephew; and
- The marriage is between first cousins unless:
- Both parties are 50 years of age or older;
- Either party produces at the time of application for marriage, a certificate signed by a licensed physician stating that the party is permanently and irrevocably sterile.
However, 750 ILCS 5/212(b) provides that parties to a marriage prohibited under subsection 212(a) who cohabit after removal of the impediment are lawfully married as of the date of the removal of the impediment.
Who can file a petition for declaration of invalidity of marriage, and when
Section 750 ILCS 5/302 describes who may file a petition for declaration of invalidity, and the time constraints for doing so:
|Who may file?||Which Grounds?||When?|
|Either party or the legal representative of the party who lacked capacity to consent;||Lack of capacity to consent to the marriage, or the party was induced enter into marriage due to force, duress, or fraud;||No later than 90 days after the petitioner obtained knowledge of the described condition;|
|Either party;||Lack of physical capacity to consummate the marriage;||No later than one year after the petitioner obtained knowledge of the described condition;|
|The under-age party, or his or her parent or guardian; and||The party was 16 or 17 and didn’t have consent of parent or guardian; and||Prior to the time the under-aged party reaches the age at which he could have married without needing to satisfy the omitted requirement; and|
|Either party, the legal spouse, in the case of a bigamous marriage, the State’s Attorney, or a child of either party.||The marriage is prohibited.||At any time not to exceed 3 years following the death of the first party to die.|
Other constraints on the declaration of invalidity
The following are limitations on the invalidity of the marriage:
- Children born to or adopted by the parties during the invalid marriage are lawful children of the parties (5/303);
- Children whose parents marry after their birth are lawful children of the parties (5/303);
- If the court finds that the interests of justice would be served by making the judgment of invalidity not retroactive to the date of the invalid marriage, then the provisions of the IMDMA relating to property rights, maintenance, support and custody of children, will apply (5/304);
- Putative spouse: A putative spouse acquires the rights conferred upon a legal spouse. A putative spouse is any person who goes through a marriage ceremony, has cohabited with the other person to whom she is not legally married, and in good faith believes that he or she is married to the other person (5/305).
- A spouse living apart from his or her other spouse may be able to obtain reasonable support and maintenance, so long as they live apart;
- To obtain a judgment for legal separation a person files a petition in the circuit court of the county in which the respondent resides or in which the parties last resided together as husband and wife;
- Provides limited temporary relief and limits the court's ability to allocate property in a legal separation;
- Without an agreement regarding non-modifiable maintenance, issues of temporary and permanent maintenance are decided de novo; and
- The requirements for a petition are the same basic requirements for a petition for dissolution of marriage 5/403(a).
It is worth noting that it is relatively uncommon to file for legal separation. A brief comparison of Legal Separation and Divorce:
- A Judgment for Legal Separation leaves the parties married. They may not remarry until they are divorced;
- Either party may file for divorce before, during, or after a case for legal separation is pending or a judgment for legal separation has been entered;
- The entry of a Judgment for Legal Separation terminates the accrual of marital property and marital debt. The Judgment for Legal Separation may or may not apportion the marital property between the parties. A party should think very carefully before filing for a legal separation because a judgment for legal separation will stop a non-employee spouse from accruing additional rights to an employee spouse’s retirement plans. It may also change the date of valuation of the parties’ marital estate, if they divorce in the future;
- Unless the parties submit their property issues to the court, in an action for legal separation, the court does not have jurisdiction to distribute marital property. See In re Marriage of O’Brien, 235 Ill. App. 3d 520; and
- A judgment for legal separation may be useful to parties who wish to separate, but also wish to remain covered by one party’s health insurance.
A bigamous marriage is a prohibited marriage 5/212(a)(1). However, parties who cohabit after removal of the impediment, the other spouse is divorced or passes away, are lawfully married as of the date of the removal of the impediment 5/212(b).
A party to a bigamous marriage, or to any prohibited marriage, will be considered a “putative spouse” and will still have the rights of a spouse if she or he meets these three requirements (5/305):
- A marriage ceremony;
- Cohabitation; and
- A good faith belief she is legally married
The status of putative spouse is eliminated by the knowledge of the fact that she is not legally married, and no further acquisition of spousal rights is permitted.
If there is a legal spouse, or another putative spouse, the rights acquired by the putative spouse do not supersede the rights of the legal spouse, or other putative spouse. The court will apportion property, maintenance and support rights as appropriate in the interests of justice. 5/305
A common-law marriage is not valid in Illinois if entered into after June 30, 1905 750 ILCS 5/214. If a marriage is valid in the state in which it was entered, it will be valid here, unless the marriage was intended to circumvent Illinois law.
Under the Illinois Marriage and Dissolution of Marriage Act, a person who meets certain requirements can cause the marriage to be dissolved. There is only no-fault grounds of irreconcilable differences between the parties. In addition, under certain circumstances parties wishing to divorce can take advantage of the joint simplified dissolution procedure.
See Jurisdiction, above.
No Fault dissolution may be granted when:
The parties have lived separate and apart for six months and there is an irrebuttable presumption that the requirement has been met.
A dissolution proceeding is commenced by filing a petition for dissolution of marriage or a praecipe for summons that can also be used as grounds for an involuntary dismissal if a Petition for Dissolution or a Petition of Legal Separation is filed subsequently in another county. 5/411.
The petition must set forth at a minimum the following information 5/403(a)(1) – (6):
- The age, occupation and residence of each party and his or her length of residence in this state;
- The date and place of the marriage;
- That jurisdictional requirements are met;
- The names, ages and addresses of all living children of the marriage and whether the wife is pregnant;
- Any arrangements as to support and parental responsibility allocation of the children and maintenance of a spouse; and
- The relief sought.
In addition, if parental responsibility is an issue, additional information regarding the children must be pled in accordance with Illinois Supreme Court Rule 902(a)-(d):
- The initial complaint must state whether the child involved is the subject of any other parental responsibility proceeding pending before another division of the circuit court, or another court or administrative body of Illinois or of any other state, an Indian tribe, or a foreign country and whether any order affecting the parental responsibility of the child has been entered by the circuit court or any of its divisions, or by another court or administrative body of Illinois or of any other state, an Indian tribe, or a foreign country. If any parental responsibility proceeding is pending with respect to the child, or any order has been entered with respect to the parental responsibility of the child, the initial complaint or petition shall identify the tribunal involved and the parties to the action;
- The pleadings must be verified;
- The defendant or respondent’s answer shall include a verified disclosure of any relevant information known to the defendant or respondent regarding any pending proceedings or orders regarding the parental responsibility; and
- The parties have a continuing duty to disclose information relating to other pending parental responsibility proceedings or any existing orders affecting the parental responsibility of the child, and shall immediately disclose to the court and the other parties to the proceeding any such information obtained after the initial pleadings, answer, or appearance.
The court at the request of either party or on its own discretion can order conciliation 5/404(a).
Joint Simplified Dissolution of Marriage
The Joint Simplified Dissolution of Marriage procedure is convenient for parties with no children together and very little marital property and income 750 ILCS 5/451.
Both parties must appear, and all of the following must be true (750 ILCS 5/452):
- Neither party is dependent on the other for support or each party is willing to waive a right to support;
- Either party has met the residency requirement;
- Irreconcilable differences are grounds for the divorce, and the parties have been separated at least 6 months;
- No children were born of the relationship, no adoptions occurred during the marriage and the wife is not, to her knowledge, pregnant;
- At the time of filing, the marriage was of eight years or less in duration;
- Neither party has an interest in real property or retirement benefits unless the retirement benefits are exclusively held in individual retirement accounts and the combined value of the accounts is less than $10,000;
- Each party has waived any rights to maintenance;
- All marital property has a fair market value of less than $50,000 after deducting encumbrances, the combined gross annual income from all sources is less than $60,000 and neither spouse earns more than $30,000 per year;
- Each party has fully disclosed all assets and debts and tax returns to the other for all the years of the marriage; and
- Written agreement has been executed dividing all assets in excess of $100 in value, and responsibility has been allocated for debts and liability. The agreement cannot be unconscionable.
To file for the Joint Simplified Dissolution of Marriage:
- Use the forms provided by the court;
- File the petition with the clerk;
- Both parties must appear before the court; and
- File an affidavit at the hearing executed by both parties stating that all property has been divided in accordance with the agreement and that they have executed all necessary documents 5/454.
Dissolution of Marriage - relief
Parties to a Dissolution of Marriage may file for temporary relief. Temporary relief is relief granted during the pendency of the case, before final judgment 750 ILCS 5/501. The parties must file the statewide financial affidavit support by documentary evidence. It allows the court to hold a hearing regarding why there is a disparity between the sworn affidavits and supporting documentation. The court SHALL assess penalties and sanctions for intentional or reckless filing of an inaccurate or misleading financial affidavit. Common types of temporary relief include:
- Temporary maintenance and/or temporary child support 5/501(a)(1)
- A temporary restraining order or preliminary injunction 750 ILCS 5/501(a)(2) and 735 ILCS 5/11-101 et seq. for the following:
- Preventing the other party from transferring, encumbering, concealing or otherwise disposing of any property
- Preventing the other party from removing a child from jurisdiction of the court
- Preventing the other party from striking or interfering with personal liberty of party or any child
- Temporary parental responsibility allocation of the minor children 750 ILCS 5/603
- Interim attorneys’ fees and costs 750 ILCS 5/501 (c-1)
- Other appropriate temporary relief 750 ILCS 5/501(a)(3)
Temporary relief may help cover the costs of discovery or a parental responsibility evaluation, among other things.
Generally, the court must have personal jurisdiction over the respondent to order most forms of temporary relief. Exceptions include parental responsibility and relief related to real property that may be obtained pursuant to 750 ILCS 5/703 and 750 ILCS 65/11.
Temporary orders terminate when a final judgment is entered 750 ILCS 5/501(d)(3).
Dissolution action stay
The IMDMA provides for a Dissolution Action Stay 750 ILCS 5/501.1. However, much of this provision was held unconstitutional by the Illinois Supreme Court in Messenger v. Edgar, 191 Ill.Dec. 65 1993. Once the summons and petition or praecipe is served, or once the respondent files her appearance, a dissolution action stay is in effect against both parties and their agents until a judgment is entered, the case is dismissed, or further order of court. The dissolution action stay prohibits the following actions by either party:
- Physically abusing, harassing, intimidating, striking, or interfering with the personal liberty of the other party or their children
- Removing any minor child of either party from the state of Illinois or from concealing a child from the other party
The provisions regarding the transfer of property were held unconstitutional.
The court has discretion to order temporary or permanent maintenance to either spouse without regard to marital misconduct in an amount that takes into account a number of factors including the following:
- The income and property of each party
- Each party’s needs
- The present and future earning capacity of each party
- Any impairment to present and future earning power due to devotion of time to domestic duties or foregoing education or training due to the marriage
- The time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support herself through appropriate employment or is the custodian of a child making it appropriate that the custodian not seek employment
- The standard of living established during the marriage
- The duration of the marriage
- The age, physical and emotional condition of both parties
- Tax consequences of the property division
- Contributions and services by the party seeking maintenance to the education, training, or career of the other spouse
- Any valid agreement of the parties
- Any other equitable factor 750 ILCS 5/504(a)
To determine how much support to order, courts now use a specific formula. It is based on the length of the marriage and the income of each person 750 ILCS 5/504(b-1). Courts generally award permanent maintenance only in long-term, at least 20 years marriages, where other statutory factors favor it. In shorter marriages, maintenance is generally temporary, either rehabilitative or reviewable. Many divorces do not result in an order for maintenance.
Maintenance is a set payment, which may be paid in one or more installments.
Maintenance is taxable to the receiver, and may be deducted from the income of the payor. Compare this to child support, which is taxable to the payor, and not to the receiver. Any award for maintenance or for unallocated support should take into account the tax consequences for the parties, which may be substantial.
Modification of maintenance
An award of maintenance may be modified or terminated only upon a showing of a substantial change in circumstances 750 ILCS 5/510(a-5). The obligation to pay maintenance terminates on the date of remarriage or date cohabitation began. This requires recipient to notify payor 30 days prior to remarriage or within 72 hours of remarriage. To determine whether a substantial change in circumstances has occurred, the court must take into account the factors set forth above in 5/504(a) as well as a number of factors including any change in the employment status of either party, any impairment of earning capacity of either party, property awarded to either party, increases or decreases in each party’s income, and other factors. See 5/510(a-5)(1)-(9).
Notice: Modification is effective only upon installments accruing after notice to the other party 5/510(a).
Cessation: Unless otherwise agreed upon and incorporated into the judgment, an obligation to pay maintenance ceases upon the death of either party or the remarriage of the party receiving maintenance or if the party receiving maintenance cohabits with another person on a conjugal basis 5/510(c).
Procedure - Illinois Judgment: Begin a modification action in the judicial district where such judgment was entered with notice or summons to the non-moving party. If neither party remains in the judicial district, file in the district where the recipient of such support resides 5/511(a). If payment is made to the clerk and neither party continues to reside in the judicial district, either party or the court itself can transfer collection to the clerk of the court in the other county 5/511(d).
Procedure - non-Illinois Judgment to be enforced in IL: Begin a modification action by filing a petition to enroll the judgment of the other state, attaching a copy of the judgment to the petition and providing notice of the filing to the clerk of the court where the judgment was entered or last modified 5/511(c).
Typically, an order for maintenance is enforced by filing a Petition for Rule to Show Cause. The Petitioner must clearly state the provisions of the court order or orders that the alleged contemnor is accused of failing to follow, and must attach a copy of the court order to his or her Petition for Rule. Once the petitioner makes a prima facie case that the court’s order has not been followed, the burden of showing that the failure to follow the order was not the respondent’s fault lies with the respondent. If the court determines that the respondent’s failure to follow the court order was in fact “willful and contumacious”, the court may impose a wide range of sanctions in order to coerce the contemnor to comply. if the Rule is for civil contempt, or to punish the contemnor if the rule is for criminal contempt.
Once a divorce action is filed, the parties' marital property becomes their marital estate. All property acquired during the marriage, not otherwise described by Section 503(a) as non-marital property, is marital property. Marital property is subject to a fair “equitable” but not necessarily equal distribution, without regard to marital misconduct 750 ILCS 5/503 et seq.
The courts will allocate the parties’ marital estate as a whole, rather than allocate each individual asset and debt.
Generally, non-marital property is not subject to distribution in a dissolution proceeding. Section 5/503(a) defines non-marital property to include the following property, among others:
- Property acquired after judgment of legal separation
- Property excluded by valid agreement of the parties
- Property acquired before the parties’ marriage except as it relates to retirement plans before the marriage that may have marital and non-marital characteristics
- Property acquired by gift or legacy
Nevertheless, non-marital property may be considered by the court in the following situations among others:
- The court may take the parties’ non-marital property into account in order to achieve an equitable distribution of marital property;
- The court may order the reimbursement of the marital estate from the non-marital estate of a party, if warranted;
- The court may order maintenance from the non-marital estate of a party.
Debts from the marriage are subject to equitable division. Third-party creditors are not bound by the judgment and may still pursue either spouse.
When determining how to allocate the parties’ marital residence, the court considers the needs of the children, the needs of the parent with the majority of parenting time, and contribution of the parties to the acquisition and maintenance of the home, as well as the likely disposition of the parties’ other property and other factors. In determining the division of marital property, the court is required under 5/503(d) to consider the desirability of awarding the family home, or the right to live in the home for reasonable periods, to the spouse having custody of the children.
Courts are generally reluctant to allow a party to remain indefinitely in the marital home without the remaining party refinancing the debt.
Interest acquired in pensions or other retirement accounts by either spouse when contributions to such accounts are made during the marriage are presumed to be marital property. Thus, most judgments for dissolution make reference to the “marital portion” of retirement accounts. Retirement accounts are generally either defined benefit usually a promise to pay a certain amount per month, and the employer bears the investment risks, or defined contribution usually an investment account with the risk born by the employee.
Not every retirement account can be allocated by the court. Retirement accounts that can be allocated must be allocated by the entry of special domestic relations orders, commonly called QDROs for ERISA controlled plans, QILDROs for many Illinois government plans, or other names such as for federal government plans.
If retirement assets are an issue in a case, the parties and their counsel would do well to research and subpoena, if necessary, information regarding the assets early in the case, and to seek outside expertise as needed.
Generally, the party who is the non-employee spouse is responsible for having the QDRO or other retirement order drafted. It is best practice to enter any such orders at the time the parties’ Judgment for Dissolution is entered.
If either party anticipates filing for bankruptcy, both should file jointly before filing for dissolution. Otherwise, one party could file post-decree and leave the other responsible for marital debts. Maintenance and support are not dischargeable in bankruptcy.
The court may order temporary or permanent child support to the parent whom the children primarily reside with 750 ILCS 5/505(a)(1).
The court determines the minimum amount of child support that a non-custodial spouse is required to pay. Section 5/505(a)(1) sets forth the following guidelines, based on the net income of the non-custodial parent:
|# OF CHILDREN||% OF NET INCOME|
|6 or more||50|
The court shall apply statutory guidelines unless the court makes a finding that application of the guidelines would be inappropriate after considering the best interests of the child in light of evidence that includes, but is not limited to, a number of stated factors:
- Financial resources and needs of the child
- Financial resources and needs of the parents
- Standard of living the child would have enjoyed had the marriage not been dissolved
- Physical, mental, and emotional condition of the child, and the child's educational needs
Net income defined
750 ILCS 5/505(a)(3) defines “net income” for the purposes of child support. Net income is income from all sources, including second jobs, overtime, holiday pay, etc. minus the following deductions:
- Federal income tax properly calculated withholding or estimated payments
- State income tax properly calculated withholding or estimated payments
- Social Security FICA payments
- Mandatory retirement contributions required by law or as a condition of employment
- Union dues
- Dependent and individual health/hospitalization insurance premiums and premiums for life insurance ordered by the court to reasonably secure payment of ordered child support
- Prior obligations of support or maintenance actually paid pursuant to a court order
- Obligations pursuant to a court order for maintenance in the pending proceeding actually paid or payable under Section 504 to the same party to whom child support is to be payable
- Expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income, including, but not limited to, student loans, medical expenditures necessary to preserve life or health, reasonable expenditures for the benefit of the child and the other parent, exclusive of gifts
- Foster care payments paid by the Department of Children and Family Services for providing licensed foster care to a foster child
Public benefit income
Federal benefits based on remuneration for employment, including Social Security Disability Insurance, are subject to withholding to enforce child support orders 42 USC §659(a). However, section 659 does not apply to SSI, which is a needs-based program. SSI benefits are not assignable or subject to garnishment or other legal process 42 USC §407(a); 42 USC §1383(d). The Illinois Appellate Court has held that section 407(a) prohibits a state court from ordering a party to pay child support out of an SSI allowance Lozada v. Rivera, 324 Ill. App.3d 476, 755 N.E.2d 548, 258 Ill. Dec. 165 (2nd Dist. 2001).
The client should do what she can to determine a spouse’s source of income. If the non-custodial parent does not have a W-2 job, income may be proved by showing deposits into a bank account or accounts, or a certain style of living.
Even if a non-custodial parent fails to comply with discovery requests, income and assets may be determined by subpoenaing the non-custodial parent’s employer(s), or from a loan application, or though other discovery.
If a non-custodial parent’s income cannot be ascertained, the court may order support based upon the needs of the child in an amount considered reasonable in the particular case.
A party may enforce an existing support order through one of the following methods:
- Through her attorney;
- The Department of Health and Human Services, through the State’s Attorney Child Support Enforcement Division, will represent the State in collecting past due child support;
- The client can file a motion for enforcement, rule to show cause, pro se at the Clerk of the Court’s office; and
- Child support can also be enforced through an order/notice of withholding. It does not have to be signed by a judge and can be served by mail upon new employers.
The Department of Health and Human Services will file a claim for any state resident who is seeking support, whether married or unmarried. If the petitioner is collecting cash assistance and the supporting parent is ordered to pay, the payment goes to the state and the recipient gets an extra $50. For the expedited Child Support Hearing procedure, see 750 ILCS 25/7.
UIFSA (the Uniform Interstate Family Support Act) has been adopted in Illinois. The Act governs interstate child support enforcement and modification, and also provides for the establishment of an original support order. Under UIFSA, Illinois courts may have personal jurisdiction over non-residents.
Once Illinois acquires personal jurisdiction over a party in a matter relating to child support, Illinois retains personal jurisdiction over that party as long as Illinois has continuing, exclusive jurisdiction to modify its order or continuing jurisdiction to enforce its order, as provided by Sections 205, 206, and 211 of UIFSA.
Enforcement of order from another state
An income withholding order from another state may be sent by first class mail to the obligor’s employer in Illinois without an additional court proceeding here in Illinois 750 ILCS 22/501. However, a child support order or income withholding order may be registered with the appropriate Illinois tribunal Section 22/601. The procedure for registration is found at 750 ILCS 22/602.
A court may modify support where there is a substantial change in the circumstances of the parties or needs of the children. 750 ILCS 5/510.
When a parent cannot pay support due to unemployment or other reduction in income, the parent should seek a modification of the court order. Until the court orders otherwise, that parent’s support obligation continues, and that parent may accrue significant arrears, including simple interest of 9% per year. Child support arrears may result in sanctions, including, but not limited to: fines, liens, interception of tax refunds, revocation of driver's license, and incarceration.
The termination date shall be no earlier than when the child becomes 18 years of age. If the child is beyond the age of 18 and is still in high school, termination will be the age of 19 or graduation, whichever occurs first. Support terminates upon emancipation of the child unless otherwise specified. The termination date does not apply to any arrearage that may remain unpaid at the time the child reaches majority. A support obligation does not terminate upon the death of the supporting parent, although a claim must be filed against the estate of the decedent.
Under 750 ILCS 5/513, the court may order post-majority payments where a child is disabled or incurring educational expenses.
Significant decision-making responsibility of a minor child, formerly known as custody
Allocation of parental responsibilities
When a case is filed under the Illinois Marriage and Dissolution of Marriage Act, a court has to determine the “parental responsibilities” of the parents. These include Significant Decision-Making Responsibility, formerly known as “custody,” and Parenting Time, formerly known as “visitation.”
Parents are required to submit a “parenting plan”, either separately or jointly, containing provisions about parental responsibility. If the parents agree, their agreement is considered binding unless the court finds it unconscionable. 750 ILCS 5/602.10.
A judgment in a case filed under the Parentage Act may contain provisions regarding custody and parenting time. The standards of the Illinois Marriage and Dissolution of Marriage Act apply for decisions involving custody/significant decision-making ability, parenting time, support, and parenting time interference. 750 ILCS 46/802.
Standing to seek parental responsibilities
A petition requesting parental responsibilities, either alone or with a divorce, may be brought by a parent of the child. A person other than the parent of the child may have standing only:
- If the child is not in the physical care of either parent;
- By a step-parent, when the parent with the majority of parenting time is deceased or disabled, and other conditions are met; and
- When one parent is deceased, by their parent or step-parent, if the other parent: was missing for more than a month without knowledge of their whereabouts, was incarcerated, or has received supervision or been convicted of certain crimes.
Significant Decision-Making Responsibility
Significant Decision-Making Responsibility refers to the right of parents to make major decisions in their child’s life. This right used to be called “custody.” Courts award significant decision-making responsibility in four areas: education, health, religion, and extracurricular activities.
In the case of religion, the court will only allocate decision–making responsibility in certain circumstances. It will look first for past agreement between the parties on this issue, then consider past conduct of the parents if there was no stated or implied agreement, but will not allocate decisions-making ability about religions upbringing if neither exists.
Courts may award Significant Decision-Making Responsibility for these areas to one or both parents in a divorce case. 750 ILCS 5/602. It does not mean that the child spends equal time living with both parents.
Factors determining significant decision-making responsibility
The "best interest of the child" is the legal standard used by the court to determine allocation of Significant Decision-Making Responsibility. To determine the child’s best interests, the court is required to consider all relevant factors, including, without limitat the following:
- The child's wishes considering maturity and ability to share reasoned and independent preference;
- The child's adjustment to his or her home, school, and community;
- The mental and physical health of all individuals involved;
- The parents' ability to cooperate in decision-making, or level of conflict that may affect this ability;
- The level of each parent's participation in past significant decision-making with respect to the child;
- Any prior agreement or past conduct between the parents relating to decision-making for the child;
- The wishes of the parents;
- The child's needs;
- The distance between the parents' homes, the cost and difficulty of transporting the child, the parents' and child's daily schedules, and the ability of the parents to cooperate in the arrangement;
- Whether a restriction on decision-making is appropriate due to serious endangerment Sec. 603.10;
- 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;
- If one of the parents is a sex offender; if so, details of the offense and any treatment completed; and
- Any other factor that the court expressly finds to be relevant.
Generally, the following are true:
- As a child gets older, the child's desires regarding residential parental responsibilities become more significant;
- Courts do not generally split siblings;
- Courts are reluctant to separate children from the parent who has been their "primary caretaker"; and
- In some counties, the preference is to allow the custodial parent to reside in the marital home only until all children turn 18.
Parenting time, formerly known as visitation, is allocated according to the best interests of the child. A parent not allotted significant decision-making responsibilities is entitled to reasonable visitation unless the court find cause to restrict visits under 750 ILCS 5/603.10. Orders setting parenting time are determined in accordance with the best interests of the child.
Factors determining parenting time
The court examines a different list of factors to determine what is in the child’s best interest for parenting time. The court must consider all of the relevant factors, including the following:
- The wishes of each parent seeking parenting time;
- The child’s wishes considering maturity and ability to share reasoned and independent preference;
- The amount of time each has parent spent performing caretaking functions in the 2 years preceding the filing of a petition 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 caretaking functions;
- 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' homes, the cost and difficulty of transporting the child, the parent's and child's daily schedules, and the ability of the parents to cooperate in the arrangement;
- Whether a restriction on parenting time is appropriate;
- Any physical violence or threat of physical violence by a parent directed at the child or other household member;
- The willingness and ability of each parent to place the child’s needs ahead of his or her own;
- 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 household member;
- If one of the parents is a convicted sex offender or lives with one; if so, details of the offense and any treatment completed (the parties are entitled to a hearing on this issue);
- If a parent is a member of the United States Armed Forces who is being deployed, the terms of the parent's military family-care plan; and
- Any other factor that the court expressly finds to be relevant.
Parenting time may not be withheld because support has not been paid. Child support may not be withheld because visits are not available.
Process for determining parental responsibilities
Parents who disagree on allocation of parental responsibilities will be sent to mediation to see if it is possible to work out an agreement. If mediation is unsuccessful, the court may appoint an attorney as the attorney for the minor child, GAL, or child representative. If no agreement is reached, experts may be retained and the case will go to a trial. Generally, parents pay the costs of these professionals.
Representation of child
In proceedings involving Significant Decision-Making Responsibility, parenting time, support, education, parentage, property interest, or the general welfare of a minor or dependent child, the court may appoint an attorney to serve in any of the following capacities 750 ILCS 5/506:
- Attorney for the minor child
- Guardian ad litem for the minor child
- Child representative
The responsibilities and powers of each of these roles differ somewhat, though all are tasked with ensuring that the minor child’s interests are protected. Generally, the parents pay the costs associated with the appointment of any of the above.
Temporary parental responsibility
Temporary parental responsibility may be awarded to a parent before final judgment is entered 750 ILCS 5/603.5. Temporary parental responsibility is awarded using the same standards as permanent parental responsibility. The final hearing should be independent, but some judges tend to make their temporary order permanent if it is in the child’s best interest.
Restriction on parental responsibilities
Parental responsibilities can only be restricted if the court finds, after a hearing that a parent has seriously endangered the child’s mental, moral, or physical health, or significantly impaired the child’s emotional development. The court can reduce, eliminate, or adjust that parent’s significant decision-making responsibility and/or parenting time. The standard is preponderance of the evidence. Restrictions on parenting time may include short visits, no overnight visits, a requirement that another adult be present during visits, supervised visitation at a supervised visitation center, or the denial of visits altogether. Courts are reluctant to impose supervised visitation or to deny visits altogether, although they will do so if the circumstances warrant it. The court can also modify a prior order restricting parental responsibilities if certain conditions are met.
Access to records
Parents who have been allocated parenting time are usually allowed access to their children’s records, such as school, child care, and health care records, even if they have not been given any significant decision-making responsibility. A judge can deny this ability through a court order if he or she finds this is not in the best interest of the child. A parent who is a respondent in an Order of Protection where the child is a protected person is denied this ability, unless a court order says otherwise.
Modification of parental responsibilities
750 ILCS 5/610 provides for the modification of an allocation of parental responsibilities. The requirements are different depending on how much time has passed since the applicable order has been entered.
Within two years of entry of an order allocating parental responsibility, no motion shall be made for modification unless:
- It is stipulated to by the partiess;
- A parent is seeking restrictions on parental responsibilities because the other has engaged in conduct that has seriously endangered a child’s mental, moral, or physical health, or emotional development;
- A party has received notice of another parent’s planned relocation; and
- The court permits the party to do so on the basis of affidavits that there is reason to believe the child’s environment may endanger seriously the child’s physical, mental, or moral health, or emotional development.
The court shall modify the parenting plan when necessary to serve the best interest of the child if:
- A substantial change has occurred in the child or parent's circumstances due to new or unanticipated facts that have arisen, requiring a modification. The standard of proof is a preponderance of the evidence;
- The court shall modify the parenting plan if the parties agree, unless it is not in the best interest of the child; and
- The court may change the order or plan without changed circumstances if it would be in the best interest of the child, and:
- The modification will match what actually has been happening, with consent of the other parent, for the past six months;
- The modification would be minor;
- The modification affects a plan or order the court would not have authorized had it fully understood the circumstances; and
- The parties agree.
Significant Decision-Making Responsibility must be modified in the state where the original judgment was entered unless that state no longer has jurisdiction or has declined jurisdiction and another state currently has jurisdiction, under 28 USCS 1738(A)(f) (see jurisdiction, above).
If a parent with the majority of or an equal amount of parenting time wants to move under certain circumstances, they need to obtain the agreement of the other parent or a court order. This is true in the following circumstances:
- The parent currently lives in Cook, DuPage, Kane, Lake, McHenry, or Will county, and is remaining in the state of Illinois, but moving more than 25 miles;
- The parent currently lives in any other county, and is remaining in the state of Illinois, but moving more than 50 miles; and
- The parent is moving to another state and their new home will be more than 25 miles from their current home.
The court may approve parental relocation if the move is in the child's best interests. The court must consider the following factors:
- The circumstances and reasons for the intended relocation;
- The reasons why a parent is objecting to the relocation;
- The history and quality of each parent's relationship with the child and specifically if the parent has substantially failed or refused to exercise their parental responsibilities;
- The educational opportunities for the child at both locations;
- The presence or absence of extended family at the both locations;
- The anticipated impact of the relocation on the child;
- If the court will be able to fashion a reasonable allocation of parental responsibilities if relocation;
- The child’s wishes considering maturity and ability to share reasoned and independent preference;
- 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; and
- Any other relevant factors bearing on the child's best interests.
The Illinois court retains jurisdiction under the UCCJEA if a child moves out of the state with a parent, but the move is 25 miles or less from their former primary residence.
Grandparents / relative visitation
Under limited circumstances, a non-parent may be granted visitation with a child. See the requirements listed in 750 ILCS 5/602.9.
A parent shall not have visitation rights if he or she is determined by the court after a hearing to have been convicted of any offense involving an illegal sex act perpetrated upon a victim less than 18 years of age, while the parent is incarcerated, on parole, probation, conditional discharge, periodic imprisonment, on mandatory supervised release program for a felony, or until that person complies with whatever terms the court determines to be in the best interest of the child. Note that this provision does not prevent a parent from having Significant Decision-Making Responsibility, although it does prevent her from having visitation rights. 750 ILCS 5/603.10(e).
A parent cannot bring a child to visit anyone granted parenting time who also has been convicted of first degree murder without the court finding this would be in the best interest of the child. 750 ILCS 5/603.10(f)
Abuse of parenting time
Abuse of parenting time occurs when a party has not complied with a parenting plan or court order regarding parenting time. There is an expedited procedure in this situation. An order for parenting time can be enforced by filing a petition. 750 ILCS 5/607.5. The court can issue an order containing additional requirements or restrictions if it finds, by a preponderance of the evidence, that:
- A parent has not complied with a parenting plan or court order; and
- Changes would be in the best interest of the child.
Remedies can include:
- Modification of terms or conditions of parenting time
- Parental education
- Make-up parenting time
- A finding that the parent is in contempt of court
- Other appropriate relief
If the court finds abuse of parenting time has occurred, the court shall award attorneys fees and costs to the other parent, unless good cause is shown to deny this remedy. If the court finds that parenting time abuse has not occurred, it can award attorneys fees and costs to the other parent.
Visitation or parenting time interference
Visitation or Parenting Time Interference is when a party, detains or conceals a child with the intent to deprive another person of his or her rights to visitation, parenting time, or custody time. The police can criminally enforce relevant orders under the provisions of 720 ILCS 5/10-5.5. The crime is a petty offense.
Jurisdiction to determine custody is governed by 750 ILCS 36/101 et seq., the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). See Standard (UCCJEA), below, if you have questions about whether or not Illinois is the state with jurisdiction.
The Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), enacted with an effective date of January 1, 2004, repealed the Uniform Child Custody Jurisdiction Act (UCCJA). All but one state has now enacted the UCCJEA.
Under the Illinois UCCJEA, Illinois courts have jurisdiction to make an initial custody determination, including visitation and other related matters, in the following circumstances:
- Illinois is the home state: Illinois is the home state of the child on the date of commencement of the proceeding or the child is not in Illinois but Illinois was the child’s home state within six months of the commencement of the proceeding and a parent or a person acting as parent is living in Illinois. If Illinois does not have home state jurisdiction but some other state does, then an Illinois court does not have jurisdiction to make a custody determination Section 201(a)(1);
- No other state is the home state of the child, or the home state declines jurisdiction, and Illinois has significant connections and substantial evidence: No state, including Illinois, has home state jurisdiction or a state with home state jurisdiction declines to exercise its jurisdiction because it determines that it is not a convenient forum to determine jurisdiction or that a party seeking to assert jurisdiction in that state engaged in unjustified conduct, and the child and at least one parent have significant connection with Illinois and substantial evidence on the issues exists in Illinois Section 201(a)(2);
- Other states decline jurisdiction, and defer to Illinois: Other states that would have either home state jurisdiction or significant connection jurisdiction have declined to exercise jurisdiction on the ground that their state is not a convenient forum or because of unjustified conduct by the party Section 201(a)(3); and
- No other state has jurisdiction und er the above provisions Section 201(a)(4).
Under the UCCJEA, home state jurisdiction is the jurisdictional basis of top priority. This is in contrast to the UCCJA which did not assign priority to any of the four bases.
Jurisdiction under the UCCJEA is subject matter jurisdiction, and lack of jurisdiction may not be waived. In fact, personal jurisdiction over the Respondent or over the children themselves is not necessary in order for the court to have jurisdiction to make a custody determination Section 201(c).
An Illinois court shall not take jurisdiction of a custody matter for purposes of modifying a custody determination made by a court of another state if there is a custody proceeding pending in another state exercising jurisdiction under the UCCJEA. This is true unless the Illinois court has jurisdiction to make an initial custody determination and the court of the other state determines that the Illinois court may assume jurisdiction or the court of the other state or the Illinois court determines that neither the child nor the child's parents presently reside in the other state.
An Illinois court that is informed of a pending custody proceeding in another state that has jurisdiction under the UCCJEA during the course of an Illinois custody proceeding shall stay the Illinois proceeding and communicate with the court in the other state (Section 204).
Note: Illinois may also exercise temporary, emergency jurisdiction in child custody matters, if warranted under the statute.