Prenuptial Agreements in Illinois

Purpose of a Prenupial Agreement

A prenuptial agreement (also known as a premarital or antenuptial agreement) is a legal means for a couple to protect the assets each is bringing into a marriage and to codify a variety of rights and obligations that may arise as a result of their marriage. In Illinois, prenuptial agreements, are governed by the Illinois Uniform Premarital Agreement Act.

Requirements for a Prenuptial Agreement in Illinois

Any Illinois couple may enter into a prenuptial agreement, provide that their agreement is in writing and has been voluntarily signed by both parties.  In Illinois,  prenuptial agreement does not require any consideration, that is a couple’s mutual exhange of benefits and/or liabilities, for it to be enforceable.  While a prenuptial agreement is executed prior to a couple’s marriage, it only becomes legally effective upon the couple’s marriage.  Illinois law does not require that either party be represented by or consult with an attorney for a prenuptial to be valid, However,  where one of the parties to prenuptial agreement asks a court to invalidate that agreement, the courts, in making such a decision,  routinely give strong consideration to whether the “disadvantaged” spouse had adequate legal representation during the negotiation of the prenuptial agreement.

Content of a Prenuptial Agreement

Section 4 of the Illinois Uniform Premarital Agreement Act states that parties to  such an agreement may contract as to the following:

  • the rights and obligations of each of the parties in any property, including the right to buy, sell, manage or dispose of the same
  • modification or elimination of spousal support
  • making of a will or a trust
  • ownership and disposition of death benefits in life insurance policies
  • the choice of law governing the prenuptial agreement
  • any other matter that does not violate Illinois public policy or a statute imposing a criminal penalty

In addition to subject matters that are criminal or violated public policy,  a prenuptial  agreement in Illinois may not contain any provisions that would adversely affect the rights of their child(ren) to support.

Enforcement of Prenuptial Agreements

The terms of a couple’s prenuptial agreement are enforceable in Illinois unless the party against whom such enforcement is being sought proves either of the following:

  • the prenuptial agreement was not executed voluntarily
  • not only was the prenuptial agreement unconscionable at the time it was executed but also that prior to its execution, the disadvantaged party did not receive a reasonable disclosure of the other’s property, did not waive the right to receive such a disclosure and did not reasonably have an adequate knowledge of the other party’s property and financial obligations

Amendments or Termination of a Prenuptial Agreement

After the parties are married, their prenuptial agreement may always be amended or terminated.  Illinois law requires that in order for a valid prenuptial agreement to be amended or terminated, the amendment or termination must be in writing and must be signed by both parties.

Modification of Child Support In Illinois

Statutory Requirements for Modification of Child Support

In Illinois a supporting parent’s child support obligation can always be modified. Section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (the Act) provides that a child support obligation can be increased or decreased only upon a showing of “substantial change” in circumstances. In Illinois, only the Court may modify a child support order; and any child support order remains in full force and effect until the Court has approved and entered an order modifying the child support amount. Either parent has the right to file a petition seeking a child support modification. However the parent, so filing for the modification, has the burden of proving to the court that the requisite “substantial change in circumstances” has occurred. Only after that burden has been met may the court determine the amount of increase or decrease in child support.

Proving a Substantial Change in Circumstances

In order to meet the burden of proving a substantial change in circumstance, the party seeking a modification of child support generally must demonstrate to the Court both of the following factors:

  • a significant increase (or decrease) in the supporting parent’s
  • ability to pay child support
  • a significant increase (or decrease) in the child’s needs

Ability to Pay

Neither Illinois statutes nor Illinois case law contain any specific percentage of increased or decreased income, which would result in an automatic modification of a supporting parent’s child support obligation. The determination of whether a parent’s ability to pay has increased or decreased sufficiently to justify a modification of child support lies strictly in the Court’s discretion. In making a determination of a supporting parent’s ability to pay, the Court must consider that parent’s income from all available sources, not just from his/her employment.

Needs of the Children

Any claim that the children’s needs have substantially increased (or decreased) since a prior child support order must be documented through evidence to the Court’s satisfaction. However, it is important to note that Illinois case law has held that an increase in the child’s needs can be presumed if there has been a passage of a number of years since the prior child support order, absent documentary evidence to the contrary. Conversely, if a supporting parent can demonstrate that the child support amount substantially exceeds the child’s actual needs, the Court has the authority to deviate from the child support guidelines and

reduce support so that the parent receiving the support does not obtain a windfall.

Obtaining and Enforcing Orders of Protection in Illinois

Orders of Protection: an overview

Issuance of an order of protection is authorized by the Illinois Domestic Violence Act (750 ILCS 60/101 et seq). An order of protection is a legal and enforceable document, issued by a court, to protect abused or harassed family or household members from domestic violence.

Who may obtain an Order of Protection

Under the Domestic Violence Act, “family or household member”, who may obtain an order of protection includes spouses, former spouses, parents, children, stepchildren, persons who have or allegedly have a child in common, persons who have or have had a dating or engagement relationship, and persons with disabilities.

Behavior prohibited by an Order of Protection

The underlying purpose of an order of protection is to prohibit and make it illegal for an offender to abuse another family or household member. As defined in detail in Section 103 of the Domestic Violence Act, “abuse” includes:

  • physical abuse
  • harassment
  • intimidation of a dependent
  • interference with personal liberty
  • willful deprivation

The types of behavior proscribed under each of the foregoing categories of abuse are extremely broad. For example, “physical abuse” prohibits not only striking a family member but also confinement, restraint or sleep deprivation of the protected person. Similarly, “harassment” includes diverse behaviors directed at protected persons such as: repeatedly calling them, stalking them, threatening them with physical violence and concealing or threatening to conceal a minor child from them.

Types of Orders of Protection

There are two types of Orders of Protection authorized by the Illinois Domestic Violence Act: criminal Orders of Protection and civil Orders of Protection. In a criminal proceeding, the State is the “plaintiff” and the abuser is the “defendant.” To obtain a criminal Order of Protection, the abuser must have allegedly committed a crime against the family member (i.e. assault, battery, stalking); and the State must prove that the defendant is guilty “beyond a reasonable doubt” (almost 100% certainty). An action for a civil Order of Protection is brought by one person against another person, either independently or in conjunction with another civil proceeding such actions for divorce or parentage. To obtain a civil Order of Protection, the petitioner must prove that alleged abuse has occurred by a “preponderance of the evidence (a little over 50% certainty.

Impact of an Order of Protection on Visitation

As part of an Order of Protection, a court mandated to restrict or deny an abuser’s visitation rights if the Court finds that the abuser has done or is likely to do any of the following:

  • abuse or endanger the minor child during visitation
  • use the visitation as an opportunity to abuse or harass the petitioner or petitioner’s family
  • improperly conceal or detain the minor child
  • act in any manner not in the child’s best interests

An Order of Protection which restricts the abuser’s visitation in accordance with the above findings takes precedence over any visitation which was previously entered for so long as the Order of Protection is in effect.

Penalties for Violations of an Order of Protection

A violation of any Order of Protection, whether issued in a civil or a criminal proceeding, may include one or more of the following: incarceration, payment of restitution, a fine, payment of attorneys’ fees and costs or community service. The type and severity of the penalty which is imposed will be dependant on the nature of the violation, previous violations, and any other aggravating or mitigating factor.

Children’s Preferences In Custody Disputes

Children’s Wishes on Custody Do Not Control

Under Illinois law, children do not decide or choose which parent will be their custodial parent.  Instead, custody must be determined by the Court in accordance with the child’s best interests.   In making such a determination, the Court is mandated to consider all relevant factors, including the child’s wishes as to his/her custodial parent.   Depending on a child’s age and maturity level, the Court may allow the child to articulate his/her custodial preferences.  The Court will then give the child’s preferences appropriate weight in making its custody determination, but  the Court is never bound by the child’s preferences as to custody.

Procedures Available to the Court in Considering a Child’s Custody Preferences
There are several legal tools available which Illinois Courts in their discretion may utilize in order to assist the Court both in considering the child’s preferences in custody ligitigation and in giving those preferences their appropriate weight in its final custody determination.  The three most commonly used are:

  • Appointing an attorney to represent the child’s interests
  • Appointing a custody evaluator
  • Interviewing the child directly

 

Representation of the Child in Custody Disputes
In any case, involving a custody dispute,  the court may appoint an attorney to represent the minor child (or children’s) interests.   By statute, the appointed appointed attorney can be assigned one of the following three roles, each charged with different tasks and different powers:

  • Attorney for the child ‘ provides independent legal counsel to the child and advocates the child’s position just as he/she would do for an adult client
  • Guardian ad litem testifies and/or submits a written report to the Court with his/her recommendations as to the child’s best interests after investigating the facts of the case and interviewing the child and the parties
  • Child’s representative advocates what he/she finds to be in the child’s best interests.  The child representative considers the child’s preferences, as to custody, but  is not bound by the child’s wishes.  A child’s representative advocates his/her position on the child’s best interests through evidence and renders no opinions or recommendations

 

Custody Evaluators
In contested custody matters, the court may appoint an expert to conduct a formal evaluation of the child’s best interest as it relates to custody.   The custody evaluation is usually done by a social worker, psychologist, psychiatrist, or other appropriate professional person, who will observe and interview the parents and the child or children, may perform psychological tests, and may also consult with any other person with information about the child and the child’s potential custodial arrangements.  At the conclusion of the evaluation, the evaluator prepares a written report, setting forth his/her findings, results from all tests administered and conclusions/recommendations concerning custody.  The custody evaluator’s report may be examined and considered by the Court in determining custody, but each parent retains the right to cross examine the evaluator at a custody hearing.

Court Interviews with the Children
Illinois courts have the authority to speak directly a child in order to ascertain the child’s wishes as to custody and custodial arrangements, if the court deems it necessary.   Such interviews are not done in open court, but rather privately in the judge’s chambers.  Parents are generally not present for these in camera interviews, but their attorneys must be present unless the parents’ have agreed otherwise.   A court reporter must be present to make a complete record of such an interview, which then becomes part of the official record in the case.

Basic Facts Regarding Maintenance in Illinois

What is Maintenance? 

The term “alimony” is no longer recognized in Illinois law. Instead what was formerly known as “alimony” is now called “maintenance.” However, maintenance, alimony, and spousal support all refer to same thing: an amount of money determined by the court (or by agreement of divorcing spouses) to be paid to a financially dependent spouse from the other spouse upon the dissolution of their marriage. As such a spouse’s obligation to pay maintenance to the other spouse is independent of his/her child support obligations.

How Maintenance is Determined
Unlike child support, there are no statutory guidelines for setting the amount or duration of maintenance in Illinois. Instead maintenance may be awarded to either spouse, without regard to marital misconduct, in amounts and for periods of time as the court, in its discretion, deems fair after considering all relevant factors, including the following twelve factors enumerated in the section 504(a) of Illinois Marriage and Dissolution of Marriage Act (the “IMDMA). Even if one spouse earns substantially more than the other, the Court may determine that a maintenance award to the lower-earning spouse is not appropriate, particularly if both spouses are or can become self supporting. In such cases, the courts may choose to offset the difference in earnings by giving the lower-earning spouse a greater share of the marital property rather than awarding that spouse monthly maintenance.

Types and Durations of Maintenance
A maintenance award can be comprised of various durations and types. Although the Illinois maintenance statute places an affirmative duty on the receiving spouse to become self-supporting, if the Court determines that the receiving spouse’s age, health or other circumstances prevents her/him from ever fulfilling that duty, the Court may order that the maintenance continue permanently. Such permanent
maintenance awards are infrequent. More often, a spouse’s maintenance obligation will be set for a specified period of time. Maintenance set for a specific period of time may terminate at then of that period without the possibility of an extension, the purpose being to enable the receiving spouse to pay for living expenses during that period while gaining the skills necessary to become self-supporting. Alternatively, maintenance set for a specific period of time may be reviewable by the Court at the end of that period in order to determine whether
maintenance should continue as ordered, be modified, or be terminated altogether.
In both cases, the underlying rationale is that the receiving spouse has the ability to become self-supporting and that the maintenance will be terminated at some point.

Modifications of Maintenance
A maintenance award can be non-modifiable, provided that the parties’ written agreement or the court order, which establishes the maintenance obligation, specifically sets forth that the maintenance obligation cannot be modified as well as any contingent circumstances that might alter its non-modifiable status. In all other circumstances an order for maintenance can always be modified upon either party showing that a substantial change in circumstances have occurred. In determining whether a modification of maintenance is warranted, the Court considers not only the twelve factors enumerated in section 504(a) of the IMDMA, but also nine additional factors set forth in section 510(a-5) of the IMDMA.

Termination of Maintenance
By statute, a spouse’s obligation to continue to pay maintenance terminates upon the death of either spouse, the receiving spouse’s remarriage, or the receiving spouse cohabiting with another person on a resident, continuing conjugal basis.
These terminating events apply automatically unless the parties in a written agreement or order, approved by the Court, have specifically waived application of any, or all, of these terminating events.

A Brief Summary of Child Support in Illinois

Parent’s Responsibility to Support Their Children

In Illinois both parents have a duty to support their children; and, by statute, the duty of support, includes an obligation to provide for the “reasonable and necessary physical, mental and emotional health needs” of the children.

 

Application of Child Support Guidelines

Generally, in an Illinois action brought pursuant to the Illinois Marriage and Dissolution of Act, the non-custodial or non-residential spouse will be ordered by the court to pay child support to the custodial or residential spouse. The court determines the minimum amount of child support pursuant the following guidelines:

 

 

Only with the requisite finding can the Court deviate above or below the guidelines in setting a party’s child support obligation.The Court must apply the above statutory guidelines in every case unless it makes a finding after considering all relevant evidence that the application of the child support guidelines would be inappropriate and not in the child?s best interests.

 

Calculation of Net Income

For purposes of setting a child support, a party’s net income includes not just their salary, but income from all sources minus certain deductions which are specifically listed in the child support statute, 750 ILCS 5/505(a)(3). In determining a party’s net income for the purposes of calculating his/her child support obligation, the Court is prohibited from deducting any amounts that cannot be included in one of the categories as set forth in the aforementioned statute.

 

Modification of Child Support Obligations

Once a party’s initial child support obligation is determined by the Court, any subsequent increases or decreases in that obligation are also strictly controlled by statute. An existing order for child support may be increased or decreased at any time provided that the party can meet the statutory requirements set forth in 750 ILCS 5/510(a). However, it is imperative that a person seeking to modify child support promptly file a motion seeking a modification as the statute prohibits modification of any child support installment accruing prior to the motion being filed.

 

No Statute of Limitation on Collection of Past Due Child Support

In July 1997 735 ILCS 5/12-108(a) was amended to add the following: “Child support judgments, including those arising by operation of law, may be enforced at any time”. As a result of this amendment, there is no statute of limitations barring a claim for past due child support. Therefore, a party may seek to collect past due child support at any time. Illinois courts have now determined that this amendment may be applied retroactively to child support judgments entered before this amendment was enacted.

 

Independence of Child Support and Visitation

A parent’s child support obligation and his/her visitation rights are independent covenants in Illinois. In other words, a parent’s failure to pay a child support obligation does not take his/her visitation rights; and, conversely, a parent’s failure to exercise visitation rights does not relieve him/her of the obligation to pay child support.

 

Active Military Duty Spouses and Illinois Divorce Law

An Overview
An Illinois divorce, involving a spouse on active military duty, creates several unique issues when compared to a typical civilian divorce. Generally, while the Illinois Marriage and Dissolution of Marriage Act (“the Act”) controls a military divorce, properly in Illinois, the provisions of the Act may be affected by applicable federal laws and rules.

Residency and Filing requirements
The filing requirements for an Illinois divorce action, where one spouse is on active military duty, are set forth in Section 401 of the Act and provides that
a divorce may be granted where one of the spouses:

  • Has been a resident of the State of Illinois for 90 days prior to commencement of the action or 90 days prior to the entry of the divorce; or
  • Has been stationed in Illinois, while a member of the military for for 90 days prior to commencement of the action or 90 days prior to the entry of the divorce.

Service of an Active Military Duty Spouse
As with a civilian divorce, a spouse on military duty must be personally served with a summons and a copy of the divorce action before an Illinois court can assert jurisdiction over the active military member.  However, applicable Federal law protects a spouse on active military duty from being “defaulted” by an Illinois divorce court from failing to respond to the divorce action.   Under the Soldiers and Sailors Civil Relief Act, a divorce proceeding may in the discretion of the Illinois court be postponed for the entire time the active military service spouse is on duty and for as much as 60 days thereafter.  This right to postpone the divorce proceedings may be specifically waived by the active duty spouse should he or she wish to complete the divorce.

Support Obligations for an Active Military Duty Spouse 
Just as in a civilian divorce, child support to be paid by a active military service spouse is governed by the Illinois child support guidelines set forth in section 505(a) of the Act.   For purposes of calculating the child support obligation of an active military spouse, Illinois law includes in that spouse’s gross income not only
military earnings paid directly to him, but also his military allotments, that is money automatically taken out of his military paycheck and sent ot someone else (for example, to a landlord for housing).  However, under federal law, the total garnishment for both child support and spousal support/maintenance from a military spouse may not exceed 60% of his or her military pay and allowances.

Visitation Rights for an Active Military Duty Spouse
Under Illinois law, a divorced spouse on active military duty, has the same right to reasonable visitation with his children as does a civilian spouse.  Since an active duty military spouse is often stationed in another state or is deployed in a foreign country, it is imperative that both parents and the courts schedules and travel arrangements for visitation between the active military spouse and his or her children accordingly.

Disposition of Property in a Dissolution of Marriage

Marital Property Defined 

Under the Illinois Marriage and Dissolution of Marriage Act (the “IMDMA”) all property, acquired by either spouse after the marriage and before the marriage is dissolve or declared invalid, is presumed to be marital property and includes assets acquired by either spouse after court proceedings have begun.   The presumption of marital property can only be overcome by a showing that the property in question was acquired by one of several methods specifically listed in subsections (a)(1-8) of section 503 of the IMDMA.  These methods include, but are not limited to, property acquired:

  • By gift, legacy or descent
  • In exchange for property acquired before the marriage or gift, legacy or descent
  • By a spouse after a judgment of legal separation
  • By exclusion in a valid agreement of the parties
  • By a judgment awarded to a spouse from the other spouse
  • Before the marriage.

 

Identification and classification of all assets belonging to a divorcing couple

The IMDMA provides that, when a party’s marriage is dissolved, the court must assign each spouse’s nonmarital property to that spouse and must divide all of the marital property in just proportions (750 ILCS 5/503(d)).  For that reason, it is extremely important not only that all property belonging to a divorcing couple be fully identified, but also that it be properly classified as marital or nonmarital.

In Illinois, each spouse is entitled to a full disclosure of all property and assets in which the other spouse have an interest.   In many counties in Illinois, including Cook County, the initial disclosure of assets is accomplished by having each spouse complete a disclosure statement.  The disclosure statement incorporates each spouse’s list of assets, categorized by type, as well as other information such as an asset’s claimed value, how the asset’s title is held, and claims regarding the asset’s marital/nonmarital status.    This initial statement is a starting point for each spouse to obtain from the other full disclosure of all assets through depositions, subpoenas, interrogatories and other formal discovery methods.

 

The importance of full disclosure 

It is essential that a spouse use all necessary methods of formal discovery to ensure that all assets of the parties have been completly disclosed before the divorce is finalized.    A recent Illinois Appellate Court decision, In re Marriage of Goldsmith, has held that a spouse is not entitled to a share of a marital asset, not included in the final judgment for dissolution of marriage, where that spouse has failed to engage in sufficient formal discovery before the judgment’s entry.

Directory

Parental Responsibility for Children’s College Expenses After a Divorce

Parental obligation to contribute to children’s college expenses in Illinois

In Illinois parents, who are divorced, who are legally separated or who have never married, may be ordered to contribute to their children’s college or professional training expenses after graduation from high school.   By statute, parental contribution to children’s post high school educational expenses is not a mandatory obligation, but is entirely within a court’s discretionary powers. 750 ILCS 5/513(a)(2).  Absent a parental agreement specifically limiting covered educational costs, the statute encompasses any college related expense the court in its discretion deems reasonable.
Statutory limitations on parental contribution
The Illinois statute expressly limits a parent’s responsibility to contribute to the college expenses of the child only through the attainment of a bachelor’s degree.  The statute also requires that both parents have access to the child’s academic transcipts, records, and grade reports at the educational institution, making it mandatory that each parent and the child sign necessary consents for such access.   A failure to execute the required consent can be a basis for the court to modify or terminate a college contribution order.

Statutory guidelines for parental contribution orders
Unlike child support obligations, court orders setting parental contribution to a child’s educational expenses are not subject to statutory guidelines or percentages.
750 ILCS 5/513(b) mandates that the court “consider all relevant factors that appear reasonable and necessary” in establishing each parent’s obligation to contribute to a child’s educational expenses, including the following:

1.    the financial resources of both parents

2.    the standard of living the child would have enjoyed had the
marriage not been dissolved

3.    the child’s financial resources

4.    the child’s academic performance

Significantly a parent’s financial resources, for purposes of establishing a college contribution amount, does not simply mean that parent’s income, but has been defined by Illinois courts to mean “all the money or property to which a parent has access”.  As such it may include the parent’s income, property and investment holdings as well as money or property that could be available to that parent through a new spouse.   In re Marriage of Drysch, 314 Ill. App. 3d 640.

Recent developments on enforcement of parental obligations to contribute
Often at the time of a divorce, the parents’ children are not close to college age.
As a result, the parties’ Judgment for Dissoution of Marriage and/or Marital Settlement Agreement will “reserve” the matter of the parents’ respective obligation to contribute until the children are ready to attend college.  Recent court decisions have carved a distinction between divorce decrees, which expressly reserve the entire issue of whether the parents are to contribute to future educational expenses (In Re Marriage of Petersen, 2011 IL 110984), and those, which affirmatively obligate the parents to contribute to such expenses, but defer
a specific allocation to each parent of those expenses (In Re Marriage of Koenig, 2012 IL App (2d) 110503).  This distinction in these cases is subtle, but significant; and provide a cautionary reminder to divorcing parents that college contribution provisions in a divorce decree must be carefully drafted and also that
actions to enforce such provisions should be brought as early as possible.

Recent developments on enforcement of parental obligations to contribute
Often at the time of a divorce, the parents’ children are not close to college age.
As a result, the parties’ Judgment for Dissoution of Marriage and/or Marital Settlement Agreement will “reserve” the matter of the parents’ respective obligation to contribute until the children are ready to attend college. Recent court decisions have carved a distinction between divorce decrees, which expressly reserve the entire issue of whether the parents are to contribute to future educational expenses (In Re Marriage of Petersen, 2011 IL 110984), and those, which affirmatively obligate the parents to contribute to such expenses, but defer
a specific allocation to each parent of those expenses (In Re Marriage of Koenig, 2012 IL App (2d) 110503). This distinction in these cases is subtle, but significant; and provide a cautionary reminder to divorcing parents that college contribution provisions in a divorce decree must be carefully drafted and also that
actions to enforce such provisions should be brought as early as possible.

Virtual Visitation in Illinois

Virtual visitation overview


Under Illinois law, a non-custodial parent is entitled reasonable visitation with his or her child unless a court has determined, after a hearing, that the visitation would endanger the child’s physical, mental, moral, or emotional health. Traditionally, visitation has meant in-person time spent between the child and a parent. However, the pervasive expansion of the internet and the rapid technological advances in electronic communication have resulted in “virtual visitation” becoming yet another option for expanding the contact between the non-custodial parent and the child. Virtual visitation (also known as electronic or e-visitation) involves parents interacting and communicating with their children from a distance using the myriad forms of electronic technology, including:

  • internet or web-based video conferencing via webcam such as Skype
  • video conferencing via a video phone text or instant messages
  • Facebook and other social media interaction
  • e-mail
  • cell phone calls

Illinois law on virtual visitation

Effective January 2010, Illinois became the sixth state (joining Florida, North Carolina, Texas, Wisconsin and Utah) to enact an electronic visitation statute.
While 750 ILCS 5/607(a)(1) initially defines visitation as “in-person time spent between a child and the child’s parent, it immediately expands that definition by adding that “in appropriate circumstances, it may include electronic communication under conditions and times determined by the court. 750 ILCS 5/607(a)(2) then codifies “electronic communication” to mean:

. . . time that a parent spends with his or her child during
which the child is not in the parent’s actual physical custody, but
which is facilitated by the use of communication tools such as the
telephone, electronic mail, instant messaging, video conferencing or
other wired or wireless technologies via the Internet, or other medium
of communication.

Establishment of virtual visitation rights in any specific family law case is discretionary with the Court, not mandatory. Virtual visitation is intended to increase the frequency of a non-custodial contact with his child, thereby enhancing that parent’s involvement in the child’s life. As such virtual visitation is meant as a supplement to the physical visitation schedule and not as a substitute for it.

Guidelines for implementing virtual visitation

While the Illinois statute authorizes the court to include virtual or electronic visitation as part of a parent’s visitation rights, it is silent on important details associated with this type of visitation such as:

  • what constitutes “appropriate circumstances” for implementing visitation through electronic communication
  • the responsibility for the costs associated with establishing and maintaining the media used for the electronic visitation
  • what efforts must the custodial parent make to facilitate the non-custodial parent’s electronic visitation
  • specific guidelines concerning reasonable timing and length for electronic visitation

Whether virtual visitation is required as part of a court ordered visitation schedule or parents wish to include virtual visitation as part of their parenting time agreement, it is essential that standards for timing, length, cost, and other associated details be
clearly set forth in the order or agreement. Establishing specific rules for virtual visitation, and memorializing those rules in writing, can help to minimize conflicts, and potential litigation, concerning the parents’ virtual visitation rights.