Polishing the new IMDMA
As with any new substantial piece of new legislation, there are always “glitches” that need to be worked out. Since the new Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) took effect on January 1, 2016, the Illinois legislature has been working on trailer bills to clarify and/or modify certain provisions of the new IMDMA. These clarifications and modifications are not meant to be substantial but rather necessary cleanup changes and technical corrections. The following is a summary of some of the more important changes House Bill 3898 (HB3898) contains as of the filing date of May 4, 2016:
Amendments to the IMDMA
• Section 501, Temporary Relief - Clarifies that both parties are enjoined from removing a child from the jurisdiction of the court for more than 14 days;
• Section 501.1, Dissolution Action Stay - Clarifies that both parties are restrained from concealing a minor child of either party from the child’s other parent (the previous language of “restraining both parties from removing any minor child of either party from the State of Illinois or from concealing any such child from the other party, without the consent of the other party or an order of the court” has been removed)
• Section 504, Maintenance - Adds that upon review of any previously ordered maintenance award, the court may extend maintenance for further review, extend maintenance for a fixed non-modifiable term, extend maintenance for an indefinite term, or permanently terminate maintenance in accordance with subdivision (b-l)(l)(A) of this Section.
• Section 513, Educational Expenses for Non-Minor Child - Clarifies that the actual cost of the child’s post-secondary expense, including tuition and fees, does not exceed the amount of in-state tuition and fees paid by a student at the University of Illinois at Urbana Champaign.
• Section 600, Definitions- Clarifies that mileage is to be measured by an Internet mapping service
• Section 602.10, Parenting plan -
• Adds that if no appearance has been filed by the Respondent, no parenting plan is required unless ordered by the court.
• Modifies that a parenting plan is binding upon the court unless it finds that the agreement is not in the best interests of the child, as opposed to unconscionable
• Section 602.11, Access to health care, child care, and school records by parents - Modifies that a parent shall not have access to school records of a child if the parent is prohibited by an order of protection from inspecting or obtaining such records pursuant to the Domestic Violence Act of 1986 or the Code of Criminal Procedure of 1963, as opposed to a parent who is not allocated parenting time.
• Section 604.10, Interview, evaluations, investigation -
• The court is no longer obligated to pay for the court reporter and transcript in the court’s interview of a child.
• A 604.lO(b) evaluation must be tendered to the parties and the court no later than 60 days before trial on the allocation of parental responsibilities. The court may review the writing upon receipt.
• Section 606.5, Hearings - Adds that the court may tax, as costs, the payment of necessary travel and other expenses incurred by any person whose presence at the hearing the court deems necessary to determine the best interests of the child
• Section 607.5, Abuse of allocated parenting time - Clarifies that if counseling is ordered by the court, all counseling sessions shall be confidential, and the communications in counseling shall not be used in any manner in litigation nor relied upon by an expert appointed by the court or retained by any party
• Section 607.6, Counseling -Adds back the section of the old IMDMA that the court may order individual and/or family counseling, as well as parenting classes
• Section 610.5, Modification -
• Clarifies that no motion to modify an order allocating parental decision making responsibilities, not including parenting time, may be made earlier than 2 years after its date
• Adds that parenting time may be modified at any time, without a showing of serious endangerment, upon a showing of changed circumstances that necessitates modification to serve the best interests of the child
Amendments to the Illinois Parentage Act
• Section 103, Definitions -
• Adds that definitions of “assisted reproduction” and “donor”
• Article 7, Child of Assisted Reproduction - Adds an entirely new section to the Illinois Parentage Act that applies to the birth of a child as a result of a valid gestational surrogacy arrangement. The Article discusses the parental status of a donor, the parentage of a child of assisted reproduction, the withdrawal of consent of an intended parent or donor, and the establishment of parentage.
It should be noted that a previous trailer bill, specifically HB1190, included a provision that was in direct response to the Appellate Court’s ruling in In re Marriage of Squire, 2015 IL App (2d) 150271. The court in IRMO Squire, upheld the ruling of the circuit court that ordered the wife’s attorneys to disgorge $60,000 of the fees already paid to them as a retainer and to turn over that amount to the husband’s attorney, relying upon the decision in IRMO Earlywine and the “leveling of the playing field” doctrine. The court rejected the argument raised by wife’s attorneys that the analysis and holding in IRMO Earlywine did not allow the trial court to disgorge those fees that the firm had already billed against and earned. HB1190 corrected the ruling in IRMO Squire by modifying Section 50l(c-1)(3) so that the court shall enter an order allocating to each party’s counsel funds held by party’s counsel but no yet earned (including retainers). As such, this took care of any concerns that the court could disgorge fees that had already been earned. However, after much debate, this provision was not included in the most recent trailer bill.
While this trailer bill is certainly the first step in clarifying and modifying certain provisions of the new IMDMA, it is likely not the last. As we speak, House Bill 3982, which implements an income sharing model for child support purposes, is presently pending in the Senate as it has already passed the House. Changes will continue to be made to the IMDMA to reflect many of the changing norms facing families today. However, it is clear that this trailer bill will for now provide more clarity, guidance, and direction for Illinois practitioners in advising their respective clients.