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Illinois Bar Journal

The Magazine of Illinois Lawyers

September 2012Volume 100Number 9Page 458

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Lawpulse

Is a family-law overhaul on the way?

By
Adam W. Lasker

No more grounds for divorce? Divorce judgments within 90 days or else? These are just two of the family-law reforms proposed by a bipartisan legislative study group.

After four years of research and public meetings, an Illinois House committee has recommended several major reforms to Illinois statutes governing divorces and child-custody matters.

The Illinois Family-Law Study Committee has drafted two major bills, both of which are under review by the House Rules Committee. If approved after joint hearings early next year, House Bill 6191 would create the Illinois Parentage Act of 2012, repealing older versions of that act and establishing new statutory guidelines and procedures for matters involving parent-child relationships. House Bill 6192 would amend the Illinois Marriage and Dissolution of Marriage Act of 1977 in numerous and often substantial ways.

"Our goal was to rewrite the entire divorce act, taking into account all the changes that have happened since 1977," said Chicago-based family-law attorney P. André Katz, who has chaired the committee since its inception. "There have been ad-hoc changes here and there, but the goal was to really take a close look and make some major revisions."

Katz said he hopes the public - particularly Illinois attorneys - will support the recommendations that were made after countless hours of research, numerous committee meetings, and four public hearings, all done with the intent of modernizing the statutory rights and procedures involved in most divorces and child-custody disputes.

The committee was established in 2008 pursuant to a House resolution backed by Speaker Michael Madigan, D-22, and former Rep. John Fritchey. Democrats and Republicans named an equal number of family-law experts to the committee, in addition to two appointees from the Illinois Supreme Court and two from the Department of Healthcare and Family Services.

"One of the most important parts here is the process," Katz said. "The goal was not to ram things through the legislature, but to make this a real bipartisan effort. This was really not a partisan fight at all. It took a little time for the other [political] side to trust me - that took years to develop - but now [after working together on common goals] we all have great relationships."

Of the hundreds of proposed amendments to the marriage and divorce statutes, Katz highlighted what he believes to be six that will affect the most families and family-law attorneys in the state.

No more grounds for divorce

The first major proposal, Katz said, is to eliminate the requirement that a separating couple plead grounds to obtain a divorce. This would include eliminating the grounds of irreconcilable differences, which he said is essentially a boilerplate pleading even in uncontested divorces.

"Across the board, people believe the use of grounds makes no sense," Katz said. "If there's going to be a divorce, there's going to be a divorce.…All it takes is six months of separation to conclusively establish irreconcilable differences.…Grounds for divorce don't benefit anybody but the lawyers, and they can create lots of problems."

Final judgments within 90 days

A second major change is a proposal that all judgments of divorce be issued within 60 days of the close of proofs in the legal proceedings, with one 30-day extension if the court files a statement of reasons for the delay.

"This issue is gigantic," Katz said, because it is not uncommon for judgments to be entered a year or more after the legal proceedings have completed, which often causes problems with maintenance and child-support payments, and which always causes stress and anxiety for the divorcing parties.

"It delays any potential appeal, it leaves the parties waiting and wondering, and many times the assets at the time of judgment don't look the same as when you started the divorce," Katz said.

In reaching a consensus on this issue, Katz said the committee studied procedures in California divorce proceedings.

"In the various cases in California - or at least the major ones - [the courts] tell you when they're going to decide a case. Once the proofs are closed and the arguments are made, they have 90 days to issue a judgment," he said.

Shared-income approach for child support

A third substantial proposal is to change the factors used to calculate child-support payments. Under the current gross-income system, Katz said statutory guidelines instruct the courts to calculate payments based almost purely on the non-custodial parent's income and assets, without taking into account such factors as the amount of time a non-custodial parent spends with the children or the level of the other parent's income and assets.

Katz said the proposed income-sharing model would force courts to consider questions like: "How does time spent with the child impact everything? How does the custodial parent's income get considered? Who should pay and how much based on their incomes?"

"The goal here is to do the right thing by everybody," Katz said. "The gross-income tables don't take those questions into consideration. The long story short is there's a recommendation to change to an income-sharing model. The entire committee voted for that, but it will require more work with HFS and the state" to reach a universal agreement on this issue.

Maintenance awards to be explained in writing

The committee also suggests implementing a rule requiring judges to provide written and reviewable findings in regards to spousal maintenance, which was formerly known as alimony.

"Right now, there are two problems," Katz said. "The case law allows judges to say that maintenance was determined 'based on all the facts and circumstances.' Then they make a ruling, but when you go to the appellate court, you don't even know what to tell them" about how the maintenance level was calculated.

The second problem, Katz said, is that maintenance awards can sometimes outlive a spouse's actual need for the support.

"We believe that the court should be able to fix the period of maintenance and make the period non-modifiable, although the [dollar] amount must always be modifiable," Katz said. "Also, there must be factual findings as to the nature of the maintenance. The court must do a reviewable award."

Reallocation of parental time and responsibilities

Katz also highlighted proposals that could change the nature of relationships between adults and children. Katz said that Illinois currently uses only two forms of child custody: sole custody, where one parent makes all decisions on behalf of the child; and joint custody, where the parents share that responsibility.

The committee urges the state to adopt a third form that Katz called "joint and sole custody." With joint and sole custody, parents could enter a joint-custody agreement, but one or both of the parents could simultaneously obtain the right to make some decisions on behalf of the child without the other parent's input.

Katz said a hypothetical situation in which this could benefit families is when a mother is the custodial parent but the father is a medical doctor. In that situation, it makes sense for the mother to make certain decisions regarding issues like the child's education, social life, and extra-curricular schedule, but it would also make sense for the non-custodial father to make decisions regarding the child's health care.

The committee also unanimously agreed that Illinois should adopt a statutory presumption that it is in a child's best interest to spend at least 35 percent of their time with each parent.

"This presumption essentially allows for expanded weekends for the non-residential parent. That's happening now, but you won't have to fight for it anymore," Katz said. "The bill also gives a guideline as to how to structure that time. The presumption is overcomeable by a preponderance of the evidence, which is the lowest threshold, so the state shouldn't get all up in arms about this."

Elimination of heart-balm remedies

Finally, Katz said the committee is urging lawmakers to abandon the common-law "heart-balm" causes of action that can be used to sue an ex-spouse - or even the ex-spouse's new love interest - for money damages if certain factors contributed to the breakdown of the marriage.

These heart-balm remedies include alienation of affection, in which a romantic interloper develops a relationship with a spouse that destroys the marriage; breach of promise to marry, when a fiancée changes his or her mind about getting married to the detriment of the other; and criminal conversation, which essentially is a civil charge of adultery against a cheating spouse. Katz said these "old-fashioned" remedies are declining in popularity on a national - if not global - scale.

"These are causes of action that are subject to abuse. Even the current statute says so," Katz said. "Our recommendation is to eliminate them in total."

Both bills have been sponsored in the House by Rep. Kelly Burke, D-36. There is not yet a named sponsor in the Senate, but Katz said he has discussed the bills with Sen. Ira Silverstein, D-8, who shows interest in supporting the proposals.

"I met with him with the goal to create joint [House and Senate] hearings because the Senate is not going to want to start with this from scratch," Katz said. "Ira anticipates that he'll be the chairman, but who knows? The joint hearings would begin in early 2013, with the ultimate goal that the bills are voted upon by May 31."

Adam W. Lasker <Law_Reporter@yahoo.com> is a Chicago-based lawyer and writer.


September 2012 Lawpulse


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