The patchwork quilt that is Illinois family and divorce law is getting restitched for the first time in nearly 40 years, with potential changes for divorce and child custody cases.
The Illinois Family Law Study Committee, a legislative advisory group created to make recommendations for updating the state's marriage law, is proposing a handful of changes the group has been fine-tuning for seven years. The changes attempt to incorporate modern cultural norms and values surrounding divorce and child custody.
Illinois' law governing marriage and divorce, the Illinois Marriage and Dissolution of Marriage Act, was passed in 1977. Andre Katz, a lawyer in Chicago and chairman of the Family Law Study Committee, said that the new draft of the law addresses the concerns of a wide range of groups.
"There's still people who think it's not perfect," Katz said. "But I think it's much better than what it was when it was written 40 years ago."
Most of the changes deal with the legal processes of getting divorced and sorting out child custody. Senate Bill 57 completely removes the concept of custody, joint or otherwise. Instead, courts would assign different child care responsibilities to each parent. Springfield lawyer Howard Feldman, appointed to the committee by the Illinois Supreme Court, said that assigning responsibility that way avoids creating winners and losers in a process that often leads to conflict.
"If you talk to people that are parents, that are involved in the process, the person that walks out of a contested case that doesn't win feels like less of a parent," Feldman said.
Katz said this problem tends to arise in sole-custody cases, particularly when the two parents can't or won't communicate with one another.
"Regardless of what party is creating the problem, the case law is pretty clear that if there cannot be effective communication, you can't impose joint custody," Katz said. "It just doesn't work."
Feldman said the proposal changes current law to reflect what is already being done in courtrooms across the state.
"We're doing most of this now, but we have silly fights," Feldman said. "We fight over not whether … the child spends Thursday night with the parent; we fight over whether the other person's a joint-custodian."
Feldman said the bill also takes away the part of divorce proceedings requiring a separate hearing in which couples have to prove to a court why they should be granted a divorce.
"It makes it so you don't have to say negative things about the other person to get a divorce," Feldman said.
Katz said that this is more reflective of the current attitudes about marriage and divorce.
"We accept that marriages don't always work out," Katz said. "When a divorce takes place, the focus should be on the needs of the children, rather than placing blame."
The bill would also eliminate so-called "heart-balm" provisions that allow a jilted spouse to sue an ex-spouse for cheating or the ex-spouse's paramour for breaking up the marriage. Feldman said those types of cases are not common in Illinois because to win such a case, it's necessary to demonstrate what was lost – down to a specific dollar amount.
"In 40 years of practicing law, I have not seen one." Feldman said.
Representatives from anti-divorce groups Family-PAC and the Illinois Family Institute testified in opposition to the bill. They said that taking away the requirement to give a reason for a divorce would make getting divorced easier and more prevalent.
The bill passed the Illinois House with bipartisan support in the previous legislative session, but it died in the Senate without a vote. This session, it passed the Democrat-controlled Senate Judiciary Committee in February on a party-line vote.