GETTING A DIVORCE IN ILLINOIS IS ABOUT TO CHANGE…….HERE’S HOW

 

    A family law committee comprised of family law attorneys, Judges and others have been working for years to overhaul the Illinois Dissolution of Marriage Act (750 ILCS 5/ et seq.) that was passed in 1997.  The changes are intended to bring the law in line with current thinking and practices as it relates to divorce, parenting time (child custody) and maintenance (alimony). It’s an attempt to equalize treatment of parties statewide, or, at least provide Judges with the same starting frame of reference when determining these issues.

    The new act, SB57, or as some in the media call it, “Modern Family” law has passed the House and Senate and is currently awaiting Governor Rauner’s signature.  At that time, it will become law in Illinois.

    Gone is the necessity of proving that one spouse is at “fault” in order to get divorced. Adultery, mental cruelty and the like are no longer necessary to prove that a party is entitled to a divorce. Back in the day there also existed actions for “alienation of affections”, “breach of promise to marry” and “criminal conversion”.  These actions, known as “Heart Balm” are abolished under the new law. These antiquated actions were moved from the “Divorce” section of the Illinois Civil Code back in 1997 to other sections of the Code. The potential damages associated with their violation was significantly reduced. But they still existed and would pop up in some divorce cases. It’s important to note that “heart balm” actions were primarily brought by women.  This year, the Legislature recognized and abolished these outdated notions and for further recognized that “men and women should have equal rights under the law”.

    In 1997, the legislature recognizing the stress, acrimony and pain for the family when one party/parent was obligated to establish wrongdoing on the other party’s part to get divorced so they established another grounds for divorce.  Referred to as “irreconcilable differences” or what we now think of as “no-fault”, parties were allowed to divorce without having to establish grounds or the other parties misdeeds. Instead, parties seeking a divorce are required to testify that “irreconcilable differences” have arisen in their marriage, that attempts at reconciliation are futile and that dissolution is in their best interest.

    Over time more couples divorced under this provision of the IDMA. In theory, it is less stressful and more amicable when the parties do not have to prove the other party did something wrong.  The Legislature has recognized that the overwhelming majority of couples choose this option when divorcing and have abolished “fault” based divorce.

    Under the 1997, IDMA, the parties were required to live separate and apart for two (2) years before a divorce would be granted under the irreconcilable differences provision. For a variety of reasons may couples could not comply with the 2 year rule.

    For instance, a couple might settle their divorce quickly or if the marriage was short there may not be much to settle if the parties did not have children or joint property.  Other couples could not afford to live apart and maintain two separate residences.  To deal with these types of situations, the parties were allowed to sign a wavier of the two year rule. Instead, the parties need only live separate and apart for six (6) months.  But, both parties were required to sign the waiver.  If one party did not want to get the divorce, she/he could simply refuse to sign the waiver resulting is more fighting.

    The new law recognizes the legal fiction that exists with the 2 year requirement and that most parties utilize the waiver.  The 2 year rule is now eliminated. The new law requires the parties to live separate and apart for 6 months in order to divorce.  It also removes another way for the parties to bicker with each other and promotes the statutes stated goal of “mitigate (ing) harm to spouses and children from exposure to conflict”…..

In subsequent posts, other provisions of the SB57 will be discussed.