When you are forced to consider how you will share parenting responsibilities following a divorce or a separation, your initial feelings may be very confusing. It can be quite overwhelming to think about not being with your child all of the time, but you probably realize how important it is for your child to have a strong relationship with the other parent. Finding common ground during a difficult time can be very challenging, but a mutual commitment to finding a cooperative solution can go a long way in providing security and happiness for your child.

Visitation is Now Parenting Time

Recent changes to the Illinois Marriage and Dissolution of Marriage Act have amended the language used to describe a co-parent’s time with his or her child. For many years, any parent who was not deemed unfit or danger to the child was presumed to have rights of reasonable “visitation.” While the intention of the law may have been reasonable, referring to a parent’s time with his or her child visitation could have the effect of making the parent feel like an outsider or an interloper in the child’s life.

For the last three decades or so, a couple looking to end their marriage in Illinois have had the option to do so on the “no-fault” grounds of irreconcilable differences. This alternative to divorce on more “traditional” fault grounds has been long seen as a way of reducing contentious and complications in the divorce process. Of course, even no-fault divorces can have their challenges, but the simpler proceedings have led to the decline of divorce filings on grounds of fault. Now, recent law changes have officially put an end to at-fault divorce in the state, and updated other provisions to help facilitate more efficient dissolutions when appropriate.

Burden of Proof

Prior to 2016, when a spouse filed for divorce citing one of the many possible fault grounds—including adultery, mental or physical cruelty, abandonment, and habitual substance abuse—he or she would be required to provide evidence of the other spouse’s behavior. As you might expect, this could often be quite difficult, as spouses inclined to engage in such activities typically would go to great lengths to hide their actions. For example, despite have serious suspicions, actually proving an extramarital affair to the court could be nearly impossible.

The circumstances surrounding a family separating in divorce are bound to change over time. As a result, one or both parties to the divorce may later seek to change the orders that set custody and visitation. Both child custody and visitation can get modified in a child’s best interest when a party requesting modification can show that circumstances have changed significantly since the initial order was entered.

Former spouses may initially seek to try to come to a mutually agreeable agreement with regards to custody in order to avoid the courts. This may be a good approach, especially if the parents are on good terms.  Any agreements the parties finalize are entered with the court to solidify it as the new custody or visitation agreement.

Generally, orders affecting child custody and visitation are not modified until two years from the order setting the custody and visitation. However, a parent who can show that keeping the order in place would negatively affect the mental, emotional, and physical health of the child may be able to get modification of an order in a shorter amount of time. Parents can also mutually agree to seek modification in less time. When seeking modification after the two-year period, the parent seeking the modification also has to prove that there are changes in circumstances, and that these changes affect the best interests of the child.

Divorce can change a person’s financial life in many ways. One way that often affects a person for a while after the divorce is finalized, is an order to pay child support or spousal support. An order for child support or spousal support can continue for years, even as a person’s finances change. When a court orders either form of support, it often considers a person’s income in determining the amount to be paid. What happens to these orders when a person’s income changes later on?

Modifying Spousal Support Orders

If a spouse who is ordered to pay maintenance retires, loses their job, or otherwise loses their source of income, they can petition a court to reevaluate the amount ordered in order to determine if it can be decreased. In filing a motion with the court, the petitioner has to show a substantial change in circumstances that would warrant the decrease.

In some cases, the division of the couple’s financial assets in a divorce can extend to accounts that a person may consider to be a personal benefit, such as a retirement account. Under Illinois law, a divorcing spouse may be entitled to part of their spouse’s retirement account in some cases. Just as there are rules and guidelines as to the division of marital property, there are rules and guidelines when it comes to the division of retirement accounts.

The Illinois law on the dissolution of marriages holds that pension benefits and other retirement plans that were acquired after a marriage and before a legal dissolution or declaration of invalidity of the marriage are marital property. As such, retirement benefits are divided under the same rules as other marital property between the parties, regardless of which party worked and had the retirement payments deducted from their pay. The determination of the value of a retirement account or pension benefits is done according to the Illinois Pension Code, which recognizes this qualification of pension benefits as marital property.

Unlike most other marital property that may have distinct marital property characteristics, as it was acquired after the marriage began, there are special considerations as to retirement accounts because the total retirement account may be made up of funds that were contributed before the marriage began. This does not restrict a retirement account or pension benefits from being considered marital property. However, typically the only retirement funds that would be considered divisible as marital property are those that were contributed after the marriage.