By Maxine Weiss Kunz

Many changes are coming to family law as of January 1, 2016. These changes include changes to custody (a term of art that is going out the window) as well as changes to financial aspects of the act. Below are a list of some of the major changes that will be in effect as of January 1, 2016:

• No more use of the word “custody” is the big claim to fame with the new Act. Instead, the court will decide on Allocation of Parental Responsibility. These allocations include who will make decisions related to a child’s health, education, religion and extracurricular activities. One or both parents can be assigned each of the 4 categories of decision making.
• No more use of the word “visitation” either. Now we will call this category “parenting time.” The term of art is considered more user friendly.
• No more double trials (we hope). What this means is that temporary support hearings will be heard on a non-evidentiary basis with few exceptions. You will no longer have to call a witness in temporary support hearings. The court will make temporary decisions based on financial affidavits and argument of counsel. There are exceptions to this rule, which will likely apply if a litigant’s financial affidavit is called into question.
• No more fault grounds. (See our prior blog on this topic). Only the grounds of irreconcilable differences may be plead and the requirement of 2 years of separation is also to become moot. If the parties cannot agree on the date of breakdown of their marriage, then a separation of 6 months will now be required instead of the prior requirement of 2 years.
• No more heavy dependence on caselaw. Many of the prior cases relied on by the courts have been codified, including the rule that you cannot strike a motion with a motion. (This is legalese that lawyers will understand and many litigants will not.)
• No more use of the word “removal” if you want to move out of State with a child. Courts will now call this term “relocation” and it is based on mileage (i.e., 25 miles for Chicago-area, 50 miles for less urban areas) instead of crossing State lines. That also means that you can no longer move from Chicago to Peoria without Court permission – a distinct change to in-State litigants. If you want to move to the “Boonies” you may want to do it now.
• No more reliance on terms such as “mother” and “father” in the Parentage Act, which is an acknowledgement of the rights of same-sex couples and their children.
• No more pleading of injunction merits in a request for exclusive possession of a marital home, however, the requirement of a spouse or child being jeopardized by continued occupancy of the litigant you are seeking to remove remains.

All of the within laws become effective as of January 1, 2016 irrespective of when your pleading was filed if your matter remains pending at that time. Any matter resolved prior to January 1, 2016 shall follow the current laws and are valid agreements. A discussion point to have with your attorney is whether to get your matter resolved now, under the current laws, or to seek to finalize your matter in year 2016.

A removal action occurs when a custodial parent, who is separated or divorced from the other parent, tries to move out of state with the children. The non-custodial parent can agree to the removal, in which case the parties would enter an agreed order with the court. If the noncustodial parent does not agree to the removal it will be up to the court to decide whether the removal is proper.

The court will consider the following factors known as the Eckert Factors to determine whether the custodial parent can move a child out of state over the other parent’s objection:

1. The likelihood that the move will enhance the general quality of life for both the custodial parent and the children;
2. The motives of the custodial parent in seeking to move to determine whether the removal is merely a ruse intended to defeat or frustrate visitation;
3. The motives of the non-custodial parent in resisting the removal;
4. That it is in the best interest of the child to have a healthy and close relationship with both parents and therefore the visitation rights of the non-custodial parent should be carefully considered; and
5. Whether a realistic and reasonable visitation schedule can be reached if the move is allowed.

It is important to note that the court is free to consider other factors as well, but at the end of the day, the court will do what is in the best interests of the child.

Time and time again, divorce lawyers are asked what, if anything, is the effect of infidelity on a divorce.  If my spouse is cheating, will I be compensated in the divorce?  If my husband is cheating, will he be punished in the divorce?  If my wife is having an affair, will I win custody?  Or, from the point of the view of the person in the relationship, if I am sleeping with someone else or in love with someone else, am I in trouble? Should I be afraid to ask for a divorce if I am the cheater?

The short answer to all of these concerns is that Illinois is a no fault divorce state.  That means the affair itself is not relevant.  For example, the maintenance statute indicates that maintenance is determined "without regard to marital misconduct."  Certainly there are minimal exceptions to this rule. Cohabitation is grounds for barring maintenance.  Further, if you are being supported by a paramour, that decreases your need for support.  But the affair, in itself, is not relevant.

The same is true for division of assets.  The Illinois statute on property distribution states in relevant part that a court "shall divide the marital property without regard to marital misconduct..."  Again, marital misconduct is excluded from a Court's determination of how to divide assets of a marriage.  If your husband or wife is sleeping with the neighbor, they are still entitled to the same portion of assets as they would receive if they were not cheating.