Now that we are more than a month into 2016, the thoughts of many people in the State who are going through a divorce or post-divorce proceedings are centered on the new Illinois Marriage and Dissolution of Marriage statute (the IMDMA). The changes in the new divorce law are historic. Gone are references to household terms such as “custody” and “visitation”.
We have been blogging about the new Illinois divorce law for months. As with any substantial piece of new legislature, which this is, questions about how the law will actually be applied is a primary concern for people affected by it. This article will discuss how the new law is being interpreted and applied to divorce cases that were filed after January 1, 2016; divorce cases that were filed prior to January 1, 2016, but are not yet resolved; and post-divorce matters for divorce cases that were completed prior to January 1, 2016.
One of the main questions that arose with the passing of the maintenance revisions that took effect on January 1, 2015, was how the new maintenance statute and guidelines would be applied to cases that were filed prior to the effective date of the statute. To back up a second, all statutes have an effective date, and most of those statutes state how they will be applied to pending situations. The rewrite to the IMDMA is no different. In the 800 section of this statute, the law clearly sets forth to how it will be applied to pending matters and its impact on those matters.
First and most obvious is that the statute will apply to any new divorce cases filed after January 1, 2016. Secondly, the law is clear that it will apply to divorce cases filed prior to January 1, 2016, but which have not yet been resolved (meaning that a Judgment for Dissolution of Marriage has not yet been entered). The law also clearly applies to post decree (post-divorce) issues exist that need to be resolved. These issues typically include modification to child support, modification to maintenance, change in custody or contribution to college expenses. Thus, though divorce decrees entered prior to January 1, 2016, were determined under the old rules, petitions to modify those decrees will be decided under the new rules.
As noted at the beginning of the article, the new statute changes some of the language and terms that divorce practitioners have used in the past and which are found in all divorce decrees entered prior to January 1, 2016. The most significant changes are the elimination of the terms “custody” and “visitation”. Since these terms were in existence and used for a substantial period of time, they will remain part of our lexicon for years to come. Future judgments, orders and agreements, however, will replace the term “custody” with the phrase “parental responsibility” and will replace the term “visitation” with the phrase “parenting time”.
This is not simply intended as a change in terminology, but a change in philosophy. No longer will one parent be considered the “custodial parent” and the other parent considered the “non-custodial parent”. No longer will one parent be given “custody” and the other parent allowed only “visitation”. Going forward, parents will be given some allocation of parenting responsibility and parenting time.
The statute, however, states that the amendments are not intended to modify or change any parental rights that are the result of an order regarding custody or visitation that was entered prior January 1, 2016. Even so, the new terms and new philosophy will be employed for all modifications of “custody” and “visitation” going forward.
That may make for some interesting cases. Conceivably, a parent may seek a modification for no other purpose than to cast the parent/child relationships into the new terminology and address them with the new philosophy of parenting in divorce. Whether judges will allow modification for only that purpose remains to be seen, as the statute retains the requirement of a “substantial change in circumstances” to support the request for modification. Theoretically, the change in the statute is not a substantial change in the circumstances of the parties that would allow modification by itself.
One thing is clear, however; the changes to the Illinois Marriage and Dissolution of Marriage Act will impact every divorce case that is presently in court and every post-divorce case that is brought to court for a modification. Though the new statute retains many of the provisions and concepts of the previous statute, there are changes that warrant and necessitate careful consideration, most of which have been documented in previous articles on our blog.
If you have questions regarding a specific case and the impact of the new Illinois Marriage and Dissolution of Marriage Act upon your case, you should seek the advice of your attorney. If you do not have an attorney or are not happy with the attorney you have used, please do not hesitate to contact us at the Drendel & Jansons Law Group. We are more than happy to help.
Roman J. Seckel- Drendel & Jansons Law Group
- 111 Flinn Street
- Batavia, IL 60510
- (630) 406-5440
- (630) 406-6179 fax
- rjs@batavialaw.com
Roman focuses his practice on Family Law and complimentary areas.
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Links to other articles on the new Illinois divorce law:
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New Illinois Marriage and Divorce Law
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Changes to the New Illinois Maintenance Law
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Changes to Illinois Divorce Law on Temporary Support
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New Divorce Law on College Expenses
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Changes to Parenting in Divorce
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Parenting Plans under the New Divorce Law
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Procedural Changes to Parenting in Divorce
For more articles on family law topics, see the Drendel & Jansons Family Law Blog.
If you need immediate help or advice, please contact us. 
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It is interesting to learn about the changes in family law. My friend is going through a divorce and is also trying to work with these changes. It has been really hard on him to go through this divorce.
I could only speculate at what people are surprised about. I think many people are surprised about how long it takes, and that is because they do not understand and are not familiar with the court process and what due process means. Everything must proceed with notice and an opportunity to be heard (basic due process). Unfortunately, that takes time. In Illinois, now, nothing needs to be proven to get a divorce. As of January 1, 2016, all divorces are “no fault” divorces, meaning that no fault must be proven. All that is necessary is for one person to petition for (request) divorce. There can be differences from state to state. For instance, up to January 1, 2016, fault still needed to be alleged in Illinois. The recent rewrite of the divorce law changed that.
Very clean, clear blog site. If you were not located 33 miles from where I live, I would contact your office.
Me and my wife are going to see a friend attorney tomorrow eve at 6pm, tryn to save money , tryn to get this resolved without paying thousands of $, I’m willing to go and listen but if I don’t like what I hear I’m prolly gonna walk out and seek my own attorney, what’s ur thoughts
If there is no hope for the marriage, resolving everything by agreement makes the most sense. The truth is that almost no one feels good with the end result. The law requires property to be divided up “fairly” but your idea of fair is probably not your spouse’s idea of fair, and neither of you may agree with the judge’s idea of fair. If you settle on your own, at least you control the damage to some extent. If you leave it to the judge, you may be just as unhappy (or more), and you will have little control over the outcome. You might as well control the compromises (because there will be compromises) instead of letting the judge dictate the compromises. We do flat fee divorces for people who want to (and are able) to settle on their own. It is good to have an attorney involved, just so you know that you are settling within the parameters of what is “fair” (according to the law). A seasoned attorney with integrity can let you know what falls within those parameters. Be careful though, some attorneys are more than ready to fight, and if you are leaning in that way, it doesn’t take much or any nudging from them to get you going in that direction. That is where they make their money, and that is where you will pay.