Divorce & Custody

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Author: Revisions contributed by, Kathryn Socha, Legal Assistance Foundation of Metropolitan Chicago
Last updated: August 2011

Statute, Jurisdiction, and Venue

750 ILCS 5/101 et seq.

Jurisdiction

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.

Venue

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.

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Declaration of Invalidity of Marriage

Overview

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.

Grounds for Declaring a Marriage Invalid
  • A party lacked the capacity to consent to the marriage, such as lack of mental capacity or incapacitation by drugs or alcohol;
  • Marriage was prohibited by statute (750 ILCS 5/212);
  • Marriage was induced by fraud or duress regarding the "essentials of marriage";
  • A party lacked the physical capacity to consummate the marriage by sexual intercourse and the other party did not know of the incapacity at the time of the marriage ceremony;
  • One of the parties was 16 or 17 when married and did not have the consent of her parents, guardian or judicial approval.
Prohibited Marriages

Prohibited marriages are described by 750 ILCS 5/212(a)(1) – (4). A marriage is prohibited if:

  • The marriage was entered into prior to the dissolution of an earlier marriage of one of the parties;
  • The marriage is between an ancestor and a descendant or between a brother and sister, whether the relationship is by the half or the whole blood or by adoption;
  • The marriage is between an uncle and a niece or between an aunt and a nephew;
  • The marriage is between first cousins unless:
    • Both parties are 50 years of age or older;
    • Either party produces at the time of application for marriage, a certificate signed by a licensed physician stating that the party is permanently and irrevocably sterile.

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.

Who Can File a Petition for Declaration of Invalidity of Marriage, and When

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
Other Constraints on the Declaration of Invalidity

The following are limitations on the invalidity of the marriage:

  • Children born to or adopted by the parties during the invalid marriage are lawful children of the parties (5/303);
  • Children whose parents marry after their birth are lawful children of the parties (5/303);
  • If the court finds that the interests of justice would be served by making the judgment of invalidity NOT retroactive to the date of the invalid marriage, then the provisions of the IMDMA relating to property rights, maintenance, support and custody of children, WILL apply (5/304);
  • Putative Spouse: A putative spouse acquires the rights conferred upon a legal spouse. A putative spouse is any person who (a) goes through a marriage ceremony, (b) has cohabited with the other person to whom she is not legally married, and (c) in good faith believes that he or she IS married to the other person (5/305).

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Legal Separation

750 ILCS 5/402

Overview

  • A spouse living apart from his or her other spouse without fault may be able to obtain reasonable support and maintenance, so long as they live apart.
  • To obtain a judgment for legal separation a person files a petition in the circuit court of the county in which the respondent resides or in which the parties last resided together as husband and wife. If the respondent cannot be found in this state, the petition may be filed in the county where the petitioner resides; or
  • The requirements for a petition are the same basic requirements for a petition for dissolution of marriage (5/403(a)).

It is worth noting that it is relatively uncommon to file for legal separation. A brief comparison of Legal Separation and Divorce:

  • A Judgment for Legal Separation leaves the parties married. They may not remarry until they are divorced.
  • Either party may file for divorce before, during, or after a case for legal separation is pending or a judgment for legal separation has been entered.
  • The entry of a Judgment for Legal Separation terminates the accrual of marital property and marital debt. The Judgment for Legal Separation may or may not apportion the marital property between the parties. A party should think very carefully before filing for a legal separation because a judgment for legal separation will stop a non-employee spouse from accruing additional rights to an employee spouse’s retirement plans. It may also change the date of valuation of the parties’ marital estate, if they divorce in the future.
  • Unless the parties submit their property issues to the court, in an action for legal separation, the court does not have jurisdiction to distribute marital property. See In re Marriage of O’Brien, 235 Ill. App. 3d 520.
  • A judgment for legal separation may be useful to parties who wish to separate, but also wish to remain covered by one party’s health insurance.

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Bigamy

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):

  • A marriage ceremony,
  • Cohabitation, and
  • A good faith belief she is legally married.

A putative spouse acquires the same legal rights as a legal spouse, including maintenance, even if the marriage is prohibited by 750 ILCS 5/212, or invalidated by 750 ILCS 5/301; (5/702).

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)

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Common-Law Marriage

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.

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Dissolution/Divorce

Statute

750 ILCS 5/401 et seq.

Overview

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.

Residency Requirements

See Jurisdiction, above.

Grounds

Fault

750 ILCS 5/401(a)(1)

The following are “fault” grounds for dissolution of marriage:

  • Impotence at the time of the marriage and thereafter
  • Bigamy
  • Adultery committed subsequent to the marriage
  • Willful desertion or absenting for one year
  • Habitual drunkenness for a period of 2 years
  • Gross habits caused by the excessive use of addictive drugs for 2 years
  • Attempt on the other spouse’s life
  • Extreme and repeated physical or mental cruelty
  • Conviction of a felony or other infamous crime
  • Infection of the other spouse with a communicable venereal disease

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

5/401(a)(2)

No Fault dissolution may be granted when:

  • The parties have lived separate and apart for two years, irreconcilable differences have caused the irretrievable breakdown of the marriage and the court determines that efforts at reconciliation have failed or that future efforts would be impracticable and not in the best interest of the family; or
  • Parties have lived separate and apart for 6 months prior to the entry of judgment dissolving the marriage, and both parties agree to waive the two-year requirement, and irreconcilable differences have caused the irretrievable breakdown of the marriage and the court determines that efforts at reconciliation have failed or that future efforts would be impracticable and not in the best interest of the family.

Procedure

Commencement

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)).

Petition Requirements

The petition must set forth at a minimum the following information (5/403(a)(1) – (6)):

  • The age, occupation and residence of each party and his or her length of residence in this state
  • The date and place of the marriage
  • That jurisdictional requirements are met
  • The names, ages and addresses of all living children of the marriage and whether the wife is pregnant
  • Any arrangements as to support, custody, and visitation of the children and maintenance of a spouse, and
  • The relief sought

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 initial complaint must state (1) whether the child involved is the subject of any other child custody proceeding pending before another division of the circuit court, or another court or administrative body of Illinois or of any other state, an Indian tribe, or a foreign country and (2) whether any order affecting the custody or visitation of the child has been entered by the circuit court or any of its divisions, or by another court or administrative body of Illinois or of any other state, an Indian tribe, or a foreign country. If any child custody proceeding is pending with respect to the child, or any order has been entered with respect to the custody or visitation of the child, the initial complaint or petition shall identify the tribunal involved and the parties to the action.
  • The pleadings must be verified.
  • The defendant or respondent’s answer shall include a verified disclosure of any relevant information known to the defendant (or respondent) regarding any pending proceedings or orders regarding the child’s custody;
  • The parties have a continuing duty to disclose information relating to other pending child custody proceedings or any existing orders affecting the custody or visitation of the child, and shall immediately disclose to the court and the other parties to the proceeding any such information obtained after the initial pleadings, answer, or appearance.
Conciliation

The court at the request of either party or on its own discretion can order conciliation (5/404(a)).

Joint Simplified Dissolution of Marriage

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.

Requirements

Both parties must appear, and all of the following must be true (750 ILCS 5/452):

  • Neither party is dependent on the other for support or each party is willing to waive a right to support;
  • Either party has met the residency requirement;
  • Irreconcilable differences are grounds for the divorce, and the parties have been separated at least six months;
  • No children were born of the relationship, no adoptions occurred during the marriage and the wife is not, to her knowledge, pregnant;
  • At the time of filing, the marriage was of eight years or less in duration;
  • Neither party has an interest in real property;
  • Each party has waived any rights to maintenance;
  • All marital property has a fair market value of less than $10,000 after deducting encumbrances, the combined gross annual income from all sources is less than $35,000 and neither spouse earns more than $20,000 per year;
  • Each party has fully disclosed all assets and tax returns to the other for all the years of the marriage;
  • Written agreement has been executed dividing all assets in excess of $100 in value, and responsibility has been allocated for debts and liability. The agreement cannot be unconscionable.
Procedure

750 ILCS 5/453

To file for the Joint Simplified Dissolution of Marriage:

  • Use the forms provided by the court;
  • File the petition with the clerk;
  • Both parties must appear before the court;
  • File an affidavit at the hearing executed by both parties stating that all property has been divided in accordance with the agreement and that they have executed all necessary documents (5/454).

Dissolution of Marriage - Relief

Temporary Relief

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 maintenance and/or temporary child support (5/501(a)(1))
  • A temporary restraining order or preliminary injunction (750 ILCS 5/501(a)(2) and 735 ILCS 5/11-101 et seq.) for the following:
    • Preventing the other party from transferring, encumbering, concealing or otherwise disposing of any property
    • Preventing the other party from removing a child from jurisdiction of the court
    • Preventing the other party from striking or interfering with personal liberty of party or any child
  • Temporary custody of the minor children (750 ILCS 5/603)
  • Interim attorneys’ fees and costs (750 ILCS 5/501 (c-1))
  • Other appropriate temporary relief (750 ILCS 5/501(a)(3))

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).

Dissolution Action Stay

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:

  • Physically abusing, harassing, intimidating, striking, or interfering with the personal liberty of the other party or their children and
  • Removing any minor child of either party from the state of Illinois or from concealing a child from the other party

The provisions regarding the transfer of property were held unconstitutional.

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Maintenance

Factors Considered

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:

  • The income and property of each party
  • Each party’s needs
  • The present and future earning capacity of each party
  • Any impairment to present and future earning power due to devotion of time to domestic duties or foregoing education or training due to the marriage
  • The time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support herself through appropriate employment or is the custodian of a child making it appropriate that the custodian not seek employment
  • The standard of living established during the marriage
  • The duration of the marriage
  • The age, physical and emotional condition of both parties
  • Tax consequences of the property division
  • Contributions and services by the party seeking maintenance to the education, training, or career of the other spouse
  • Any valid agreement of the parties
  • Any other equitable factor 750 ILCS 5/504(a)

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.

Types of 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.

Tax Consequences

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.

Modification of Maintenance

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)).

Enforcement

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).

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Property

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.

Generally

The courts will allocate the parties’ marital estate as a whole, rather than allocate each individual asset and debt.

Non-Marital Property

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:

  • Property acquired after judgment of legal separation
  • Property excluded by valid agreement of the parties
  • Property acquired before the parties’ marriage
  • Property acquired by gift or legacy

Nevertheless, non-marital property may be considered by the court in the following situations (among others):

  • The court may take the parties’ non-marital property into account in order to achieve an equitable distribution of marital property;
  • The court may order the reimbursement of the marital estate from the non-marital estate of a party, if warranted;
  • The court may order maintenance in gross from the non-marital estate of a party.

Marital Debts

Debts from the marriage are subject to equitable division. Third-party creditors are not bound by the judgment and may still pursue either spouse.

Marital Residence

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.

Retirement Assets

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.

Bankruptcy

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.

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Child Support

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
120
228
332
440
545
6 or more50

 

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:

  • Financial resources and needs of the child
  • Financial resources and needs of the custodial parent
  • Standard of living of the child if the marriage had not been dissolved
  • Physical and emotional condition of the child, and the child's educational needs and
  • Financial resources and needs of the non-custodial parent

Net Income Defined

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 income tax (which has been properly calculated)
  • State income tax (which has been properly calculated)
  • Social Security (FICA payments)
  • Mandatory retirement contributions required by law or as a condition of employment
  • Union dues
  • Dependent and individual health/hospitalization insurance premiums
  • Prior obligations of support or maintenance actually paid pursuant to a court order
  • Expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income, medical expenditures necessary to preserve life or health, reasonable expenditures for the benefit of the child and the other parent, exclusive of gifts

Public Benefit Income

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).

Locating Income

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.

Enforcement

A party may enforce an existing support order through one of the following methods:  

  • Through her attorney
  • The Department of Health and Human Services, through the State’s Attorney Child Support Enforcement Division, will represent the State in collecting past due child support
  • The client can file a motion for enforcement (rule to show cause) pro se at the Clerk of the Court’s office
  • Child support can also be enforced through an order/notice of withholding. It does not have to be signed by a judge and can be served by mail upon new employers.

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.

Interstate Enforcement

750 ILCS 22/101 et seq.

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.

Enforcement of Order from Another State

750 ILCS 22/501

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.

Modification

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.

Termination

750 ILCS 5/510(d)

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.

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Custody of a Minor Child

For a detailed discussion of the differences between the UCCJA and the UCCJEA, click on the title below:

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) 

To view a video training on the UCCJEA and the differences between the UCCJA and the UCCJEA, click on the title below:

How to Utilize the Uniform Child Custody and Enforcement Act

Jurisdiction

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.

Standard (UCCJEA)

750 ILCS 36/101 et seq.

Under the Illinois UCCJEA, Illinois courts have jurisdiction to make an initial custody determination (including visitation and other related matters) in the following circumstances:

  • Illinois is the home state: Illinois is the home state of the child on the date of commencement of the proceeding or the child is not in Illinois but Illinois was the child’s home state within six months of the commencement of the proceeding and a parent or a person acting as parent is living in Illinois. If Illinois does not have home state jurisdiction but some other state does, then an Illinois court does not have jurisdiction to make a custody determination (Section 201(a)(1));
  • No other state is the home state of the child, or the home state declines jurisdiction, and Illinois has significant connections and substantial evidence: No state, including Illinois, has home state jurisdiction or a state with home state jurisdiction declines to exercise its jurisdiction because it determines that it is not a convenient forum to determine jurisdiction or that a party seeking to assert jurisdiction in that state engaged in unjustified conduct, and the child and at least one parent have significant connection with Illinois and substantial evidence on the issues exists in Illinois (Section 201(a)(2));
  • Other states decline jurisdiction, and defer to Illinois: Other states that would have either home state jurisdiction or significant connection jurisdiction have declined to exercise jurisdiction on the ground that their state is not a convenient forum or because of unjustified conduct by the party (Section 201(a)(3)).
  • No other state has jurisdiction under the above provisions Section 201(a)(4).

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.

Standing to Seek Custody of a Minor Child

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.

Joint Custody

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 Custody

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

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.

Factors Determining Custody

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 wishes of the parents
  • The wishes of the child depending on the child's age, maturity, and education
  • The interaction of the child with the parents, siblings and other relevant persons
  • The child’s adjustment to home, school, and the community
  • The mental and physical health of all parties
  • Any acts of violence or threats of violence by the parties
  • The occurrence of abuse as defined by the Illinois Domestic Violence Act
  • The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child
  • Whether one party is a sex offender

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:

  • At about age 14, the child’s desires regarding residential custody become very significant;
  • Courts do not generally split siblings;
  • Courts are reluctant to separate children from the parent who has been their "primary caretaker";
  • The marital residence generally follows the award of custody. However, this may vary in different parts of the state. In some counties, the preference is to allow the custodial parent to reside in the marital home only until all children turn 18.

Temporary Custody

750 ILCS 5/603

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.

Representation of Child

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:

  1. Attorney for the minor child
  2. Guardian ad litem for the minor child
  3. Child representative

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

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.

Child Abduction

See the article "Child Abduction."

Custody Modification

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:

  1. There is a change in circumstances with regard to either the child or the custodian, since the custody judgment was entered, or material facts have come to light that were unknown at the time of the custody judgment; and
  2. Modification is necessary to serve the best interests of the child.

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).

Removal of Children from State

750 ILCS 5/609

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:

  • Whether the move enhances the general quality of life for the custodial parent and the children
  • Whether custodial parent has a good motive
  • Whether non-custodial parent has a good motive in resisting removal
  • Whether it is in the child’s best interest to have a close relationship with both parents and other family member(s), and
  • The effect of the move on visitation

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Visitation

Visitation as a Parental Right

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.

Parental Obligation

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.

Restricted Visitation

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.

Grandparents / Relative Visitation

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).

Sex Offense

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.

Enforcement of Visitation Orders

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:

  • Denied visitation as ordered by the court
  • Exercised his or her visitation rights in a manner that is harmful to the child or the child’s custodian

If the court finds that visitation abuse has occurred, it may order one or more of the following:

  • Modification of visitation to specify periods of visitation or restrictions on visitation
  • Supervised visitation with a third party or public agency present
  • Make-up visitation
  • Counseling or mediation
  • Other appropriate relief

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

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.

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