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.

Grandparent Visitation Rights

Should Grandparents have a right of visitation to their grandchildren?

If you were to define “right” as a fundamental right protected by our United States Constitution, any attorney or justice would tell you NO! These “grandparent visitation” cases all stem from the U.S. Supreme Court case of Troxel v. Granville in which the Court stated that allowing a grandparent visitation rights over the objection of the child’s parents interfered with the parent’s fundamental right to rear their children, thus, was unconstitutional.[1] However, this case was not the final say as to grandparent rights. During the 2000s, Illinois grappled with the constitutionally of the “grandparent visitation” statute and but the Illinois legislature finally created a statute in 2005 that is still in effect today.[2]

I believe that the above question should be answered from moral point of view before determining what legal recourse a grandparent has to secure visitation with their grandchildren. I see two different situations: (1) the child was deserted by one of their parents and the grandparents of the “deserter” now wish to create a relationship with the grandchild or (2) the parents of the child are criminals, drug users, worthless or all of the above and the grandparents want to give the child some sort of stable lifestyle. In both scenarios, the answer for me is easy: visitation is the least the court can do, why not custody? However, the law is not so easy to agree.

As of right now, IMDMA section 607(a-5)(1) requires at least two elements in order for a grandparent to file a petition for visitation.[3] Those elements are: (1) a parent has unreasonably denied visitation to the grandparent and (2) one of the following:

  1. The child’s other parent is deceased or deemed missing for over 3 months.
  2. A parent is incompetent as a matter of the law.
  3. A parent has been incarcerated for the 3 month period preceding the filing of the petition.
  4. The child’s mother and father are divorced or have been legally separated from each other or there is pending a dissolution proceeding involving a parent of the child or another court proceeding involving custody or visitation of the child … and at least one parent does not object to the grandparent having visitation with the child. The visitation of the grandparent must not diminish the visitation of the parent who is not related to the grandparent.
  5. The child is born out of wedlock, parents are not living together, and petitioner is a maternal grandparent of the child.
  6. The child is born out of wedlock, parents are not living together, the petitioner is the paternal grandparent, and the paternity has been established by a court of competent jurisdiction.

The statute goes on to say that the grandparent has the burden to prove the parent’s decision to refuse visitation is harmful to the child’s mental, physical, or emotional health. The statute gives a list of factors for the Court to consider.

In sum, the grandparent has a tough evidentiary battle to overcome. He or she must be able to produce evidence that the denial of the visitation is unreasonable and harms the child’s mental, physical, or emotional health. If the parents have never been charged or convicted of a crime, what type of evidence could the grandparent logically obtain? Some decent tools at this point would be depositions and interrogatories. However, what parent will admit to their foul conduct upon the child? The grandparent could always obtain experts to evaluate the child’s relationship with the parents or file a motion for a 604(b) evaluator. Either way, although expensive, the 604(b) evaluator or expert would be crucial in satisfying the grandparent’s ability to overcome their burden in court.

Let us go back to the two scenarios I presented above. In the first scenario, one parent deserted the child. The parents are either divorced, the non-deserting parent has filed a petition for dissolution, or never married. In the first two cases, so long as one of the parents do not object, the grandparents may file a petition for dissolution so long as they have been denied reasonable visitation. However, if the parents were never married, the grandparent could still file the petition even if the parent has objected. In the second scenario, if the parent is incarcerated than the grandparent just has to prove the grandparent has been denied reasonable visitation. If the parent is a drug-addict or the like, the grandparent will most likely not be able to petition the court for visitation absent other circumstances.

The Court’s presumption that parents are ALWAYS fit parents and have the fundamental right to rear their children has some fundamental flaws. However, the right is a “right” for a reason. Just because a grandparent may object to a parent’s lifestyle does not necessarily mean that the parents are bad at their job of raising their own children. The Courts need to protect the parents right to raise their children and take every precaution necessary. However, my suggestion is that grandparents should simply have to prove that the parent is “unfit” in order to gain visitation. This burden should rest with the grandparents and should be proven by clear and convincing evidence. If the parent is “unfit”, what else does the grandparent need to prove? What do you think?


[1] Troxel v. Granville, 530 U.S. 57 (2000)

[2] In 2000, the Illinois Supreme Court in Lulay v. Lulay, 193 Ill. 2d 455 (2000) stated parts of IMDMA 607 were unconstitutional. In 2002, the Illinois Supreme Court in Wickham v. Byrne, 199 Ill. 2d 309 (2002) stated all of the grandparent visitation statute was unconstitutional. Finally on January 1, 2005, the new grandparent visitation statutes went into effect.

[3] 750 ILCS 5/607(a)(5), 607(a)(7)

Sarah Simpson

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Sarah Jones

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Dave Jacobs

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Helen Hunt

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John Connor

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