Divorce and Custody in Illinois

Divorce is the legal dissolution of a marriage by a court.  Illinois divorce law is codified by the Illinois Marriage and Dissolution of Marriage Act [IMDMA].  750 ILCS 5/101, et seq.  The fault-based grounds for dissolution were abolished by the most recent version of the IMDMA,  and the sole ground for divorce is irreconcilable differences with a six month period of separation.  No two divorces are identical.  The length and complexity of a particular divorce proceeding may vary from case to case.   A divorce proceeding may be a simple a financial and property settlement.   Or it could be a multiple day contested trial involving the allocation of parental responsibilities for several children.  In Illinois, divorce is not about placing blame on a spouse for the breakdown of a marriage.  A divorce seeks to establish the relationship between to divorcing spouses in the future and and how they will co-parent their children.

I.   Issues in a Divorce Proceeding

A divorce generally will resolve the following issues:

  1.  financial settlement including maintenance and child support, if appropriate;
  2.  disposition of property and debts; and
  3.  allocation of parental responsibilities for decision making and parenting time, if appropriate.

II.  Financial Settlement

Depending upon the income of the respective spouses and whether the parties have minor children, one of the spouses may be required to pay child support and/or maintenance to the other spouse.  In 2015, Illinois adopted maintenance guidelines to provide guidance on the amount and duration of a maintenance award if the court deems maintenance is appropriate.  750 ILCS 5/504 (b-1)(1).  Guideline maintenance is calculated as follows: 30 per cent of the payor’s gross income minus 20 per cent of the payee’s gross income.  The payee is capped at no more than 40 per cent of the parties combined gross income even if the calculation would result in a greater sum.

The duration of a guideline maintenance award is calculated from the length of the marriage from the date of marriage until the filing of the Petition for Dissolution of Marriage.  One to five years results in a duration of .2 times the total duration of the marriage.  So a marriage that lasted 30 months would have a duration of maintenance of 6 months.  Five to ten years would result in a duration of .4 times the duration of marriage.  Ten to fifteen years increases the duration to .6 times the duration of marriage.  The ten year mark is also significant because a court only has the ability (absent agreement by the parties) to enter fixed term duration for maintenance that terminates on a date certain.  Between fifteen and twenty years, the duration is .8 times the length of the marriage.  After twenty years, the duration of a maintenance award is either the actual duration of the marriage or is permanent.

Guideline maintenance is not statutorily applicable in two instances:

  1. the combined income of the two spouses exceeds 250,000; or
  2. if one of the spouses is obligated to pay child support or maintenance or both from a prior relationship;

Even if guideline maintenance is not statutorily applicable, a party may be order to pay maintenance in accordance with the factors set forth in 750 ILCS 5/504 (a).  Further, many courts will still consider maintenance calculated in accordance with the guidelines in determining the amount and duration of a maintenance award under section 504 (a).

A party may also be required to pay child support.  Currently, child support orders in Illinois are calculated by application of child support guidelines.  Beginning July 1, 2017, future child support orders will be calculated by an income shares model.

III.  Disposition of Property and Debts

A court will divide property and debts of the parties in accordance with the factors listed in 750 ILCS 5/503.  For purposes of determining what property is subject to division, the court will determine whether property is marital property subject to division or non-marital property owned by one of the spouses and not subject to division.  For purposes of determining whether a property or debt is marital, the primary inquiry is into how the property or debt was acquired.  Non-marital property typically was property that was owned by one of the spouses prior to the marriage or inherited after the marriage.  Otherwise non-marital property may be converted into marital property depending upon whether marital funds were used to support or otherwise maintain said property.

The court is not limited by which spouse is listed as the owner of a property or debt.  If the parties come to an agreement regarding financial settlement and disposition of property and debts, the agreement will be reflected in a Marital Settlement Agreement that may be incorporated into the Judgment for Dissolution of Marriage.

IV.  Allocation of Parental Responsibilities

Prior to January 1, 2016, the parenting issues were identified as custody issues.  Commencing January 1, 2016, the current version of the Illinois Marriage and Dissolution of Marriage Act [750 ILCS 5/101, et seq.] changed  replaced by the terms Allocation of Parental Responsibilities for decision-making and for parenting time.  However, despite the change in language, the courts and the parties are still seeking to determine what roles and responsibilities the parents will exercise with their children on on what terms.  Beyond the new terminology, the are a wealth of minor changes and tweaks that may favor a more equal allocation of parenting time.

Under the new IMDMA, within 120 days of the filing or service of a petition that seeks to allocate parental responsibilities, the parties must submit either a joint or a separate parenting plan. 750 ILCS 5/602.10.  The parties may be required to participate in mediation if they are unable to agree on a parenting plan.  Additionally a Guardian ad Litem may be appointed to make recommendations for allocation of parental responsibilities.  The parties may even seek mental health or custody evaluations from licensed mental health professionals.  Finally, in the absence of an agreement, the court will conduct an evidentiary hearing to determine these issues. The ultimate agreement or ruling will be reflected in an Allocation Judgment and Parenting Plan, which may be incorporated into the Judgment for Dissolution of Marriage.

From the initial consultation through the final judgment, Mr. Brown will advise prospective clients of particular issues involved in their case, and the likely resolution of those issues.