Saturday, August 10, 2013

Big Changes possibly coming for Bloomington Illinois Divorces

Divorces in McLean County are governed, in large part, by the IMDMA (Illinois Marriage and Dissolution of Marriage Act). There have been plans on the drawing board to revise the IMDMA for some time, but a vote may come this Fall to make some major changes. I will be publishing a number of blog posts on over the next couple of months about these changes that could affect my divorce practice in Bloomington Illinois. This first post is simply an article that I was sent by the State Bar. If you have any questions about these changes and how they will affect your Central Illinois divorce or family case, just contact my office at 

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impracticable and not in the best interests of the family.[1] The current six-month waiting period for this ground is repealed, but if the parties are separated for six months it creates an irrefutable presumption that irreconcilable differences exist.[2]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 fornon-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]

Jon D. McLaughlin
Bloomington Law Group LLC
Flanagan State Bank Building
2401 East Washington Street
Bloomington Illinois 61704
Skype: jmclaug2

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