Author: Revisions contributed by, Kathryn Socha, Legal Assistance Foundation of Metropolitan Chicago
Last updated: August 2011
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. Venue is not jurisdictional and any objection must be made within the time frame for the respondent to respond 750 ILCS 5/104.
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.
Prohibited marriages are described by 750 ILCS 5/212(a)(1) – (4). A marriage is prohibited if:
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.
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||The party was 16 or 17 and didn’t have consent of parent or guardian||Prior to the time the under-aged party reaches the age at which he could have married without needing to satisfy the omitted requirement|
|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|
The following are limitations on the invalidity of the marriage:
It is worth noting that it is relatively uncommon to file for legal separation. A brief comparison of Legal Separation and Divorce:
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):
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 are grounds for dissolution that are based upon fault, and there is also the no-fault ground 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.
The following are “fault” grounds for dissolution of marriage:
Beware of alleging specifics in your petition that may violate privacy laws, such as Illinois’ AIDS Confidentiality Act (410 ILCS 305/1). Beware of needlessly alleging specifics in your petition that you may later wish unstated.
No Fault dissolution may be granted when:
A dissolution proceeding is commenced by filing a petition for dissolution of marriage or a praecipe for summons in which a petition must be filed within six months (5/411(a)).
The petition must set forth at a minimum the following information (5/403(a)(1) – (6)):
In addition, if child custody is an issue, additional information regarding the children must be pled in accordance with Illinois Supreme Court Rule 902(a)-(d):
The court at the request of either party or on its own discretion can order conciliation (5/404(a)).
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):
To file for the Joint Simplified Dissolution of Marriage:
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. Common types of temporary relief include:
Temporary relief may help cover the costs of discovery or a custody evaluation, among other things.
Generally, the court must have personal jurisdiction over the Respondent to order most forms of temporary relief. Exceptions include custody 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).
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:
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:
There are no statutory formulas for calculating maintenance, though courts may have their own informal formulas. Courts differ widely in their views of what constitutes appropriate maintenance. Courts generally award permanent maintenance only in long-term (at least twenty 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.
Permanent maintenance is maintenance that is paid until one of several statutory factors occur.
Temporary rehabilitative maintenance is maintenance that is paid for a limited period of time with the goal of enabling the receiver to become economically self-sufficient.
Temporary reviewable maintenance is maintenance that is paid for a limited period of time, but the court reserves jurisdiction to determine in the future whether the maintenance should continue or terminate.
Maintenance in gross is a set amount of maintenance, 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.
An award of maintenance, even permanent maintenance, may be modified or terminated only upon a showing of a substantial change in circumstances 750 ILCS 5/510(a-5). 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:
Nevertheless, non-marital property may be considered by the court in the following situations (among others):
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 custodial parent, 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 after the marriage and before a judgment of dissolution is entered 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:
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 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.
A party may enforce an existing support order through one of the following methods:
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.
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.
Support terminates upon emancipation of the child unless otherwise specified. 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.
For a detailed discussion of the differences between the UCCJA and the UCCJEA, click on the title below:
To view a video training on the UCCJEA and the differences between the UCCJA and the UCCJEA, click on the title below:
Jurisdiction to determine custody is governed by 750 ILCS 36/101 et seq., the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
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). Most states have 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:
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.
A child custody proceeding 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 custody of either parent 750 ILCS 5/601(b). Illinois courts have determined that a nonparent merely having physical possession of a child is not sufficient to establish standing.
Courts may award joint legal custody of the minor children to both parents in a dissolution action 750 ILCS 5/602. Joint legal custody refers to the right of both parents to determine together the child’s educational, health-care, religious training, and other major decisions. It does NOT mean that the child’s spends equal time residing with both parents.
Joint custody requires that parents be able to cooperate "effectively and consistently" in matters relating to joint parenting. Joint custody requires the parties to enter into a "Joint Parenting Agreement” which spells out their rights and responsibilities, and includes a mechanism for resolving disputes before going back to court.
Sole legal custody refers to the right of just one parent (the custodial parent) to determine by him or herself the child’s educational, health-care, and religious training. The parent with sole legal custody also has residential custody.
Residential custody refers to the parent with whom the child will primarily reside. Most courts are reluctant to split time equally between both parents, unless the parents agree that to do so would be in the best interests of their child or children.
The "best interest of the child" is the legal standard used by the court to determine child custody. To determine the child’s best interests, the court is required to consider “all relevant factors” including the following 750 ILCS 5/602:
The court shall not consider the conduct of a present or proposed custodian, if such conduct does not affect his/her relationship with the child.
Generally, the following are true:
Temporary custody may be awarded to a parent before final judgment is entered 750 ILCS 5/603. Temporary custody is awarded in accordance with the same standards as permanent custody. The final custody hearing should be de novo, but some judges tend to make their temporary order permanent unless good cause for a change is shown.
In proceedings involving custody, visitation, 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:
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.
Custody battles are notorious for being costly. They may cost thousands of dollars, they may involve emotional anguish, and they often diminish the ability of both parents to cooperate to raise healthy and happy children. Generally, parents who disagree on custody and visitation 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, custody experts may be retained. Generally, parents pay the costs associated with the appointment of these professionals.
See the article "Child Abduction."
750 ILCS 5/610 provides for the modification of a custody judgment.
Unless stipulated by the parties:
A party may not move to modify a custody judgment within two years of its entry unless the court permits the party to do so on the basis of affidavits that there is reason to believe the child’s present environment may endanger seriously the child’s physical, mental, moral or emotional health.
To prevail in a petition to modify a custody judgment (whether such a petition is filed within two years of the original judgment or later), the petitioner must prove two things:
The standard of proof is clear and convincing evidence.
Custody 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).
The court may approve removal from the state if the move is in the child’s best interests. The burden of proof that removal is in best interests is on the party seeking to remove. Relevant considerations to determine best interest (In Re Marriage of Eckert, 119 Ill. 2d 316, 518 N.E.2d 1041 (1988)) include the following:
750 ILCS 5/607(a) states that a non-custodial parent is entitled to reasonable visitation unless the court finds, after a hearing, that visitation would endanger seriously the child’s physical, mental, moral or emotional health. Note that visitation rights are not determined in accordance with the best interests of the child.
A parent has an obligation to foster the relationship between the child and ex-spouse. This obligation may be taken into consideration in the award of child custody.
The burden of proof falls upon the movant to show that unrestricted visitation would pose a "serious endangerment of the child’s physical, mental, moral, or emotional health." Restricted visitation may be 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 sometimes do so if the circumstances warrant it.
Visitation may not be withheld because support has not been paid. Child support may not be withheld because visits are not available.
Visitation can be modified at any time if it serves the best interest of the child (750 ILCS 5/607). However, visitation may be restricted only upon a showing of serious endangerment to the child.
Under limited circumstances, a non-parent may be granted visitation with a child. See the requirements listed in 750 ILCS 5/607(a-5) and (a-7).
A parent shall not have visitation rights if 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, or on a mandatory supervised release program for that crime, and thereafter, until that person completes a treatment program approved by the court (5/607(e)). Note that this provision does not prevent a parent from having custody, although it does prevent her from having visitation rights.
An order for visits can be enforced by filing a petition for rule to show cause why the offending party should not be held in contempt 750 ILCS 5/607.1.
In addition, there is available an expedited procedure in the case of visitation abuse. Visitation abuse occurs when a party has willfully and without justification either:
If the court finds that visitation abuse has occurred, it may order one or more of the following:
The court shall award attorneys fees and costs if it finds that the enforcement action is vexatious and constitutes harassment (5/607.1(f)).
Visitation Interference is when a party "detain(s) or conceal(s) a child with the intent to deprive another of his or her rights to visitation." The police can criminally enforce against unlawful visitation interference under the provisions of 720 ILCS 5/10-5.5. Unlawful Visitation Interference is a petty offense. Violation of a court order establishing visitation rights is required before a complaint may be filed.
Printed from: www.illinoisprobono.org/index.cfm?fuseaction=home.dsp_Content&contentID=307
We welcome your comments and suggestions