Each year in the U.S., more than 4 million people tie the knot. Another 1.6 million get divorced. While the rates for both marriage and divorce have declined in the last 10 years, the odds are good that you or someone close to you will have to cope with the devastation of a failed marriage.
And while terms such as "custody" and "alimony" have become well-ingrained in every day parlance, a major overhaul in the state's divorce laws has all but made them obsolete.
In today's Weekend Edition of the Daily Journal, we give you an unprecedented look into these changes from the perspective of two judges working inside the Kankakee County Courthouse.
Judge Michael D. Kramer has heard more than 2,000 family law cases in his 13 years on the bench. Judge Kenneth A. Leshen has shared the family law call with Kramer since December. Before that, Leshen heard small claims and foreclosure cases.
Leshen: On Jan. 1, divorce and child custody laws changed drastically for the first time in 37 years. Why?
Kramer: The law recognizes that family structures have changed in the past four decades. The overarching purpose of the changes in the law is to recognize and support the rights of children and parents to have a healthy and safe relationship with each other.
The changes in the law have been designed to ensure predictable decision-making for the care of children and to minimize as much as possible the stress caused by prolonged and often bitter legal fighting and to help parents make decisions in a friendly and productive way.
Leshen: What types of things do you see in the courtroom that disturb you as a parent and as a judge?
Kramer: I wish, for just one moment, I could put parents in the shoes of their children so they could feel what they feel and see what they see.
It's most difficult to watch parents' bad feelings for one another affect their children's lives. Children who don't get to play sports because of a disagreement between their parents about who would take them to practice or who miss out on sleepovers because the weekend was one parent's or the others. Parents who don't get along often have great difficulty staying focused on the needs of their children.
Leshen: How do you make a good decision under these circumstances?
Kramer: Deciding issues of child custody is difficult. In close cases, I will usually write two opinions; one favoring one parent and one favoring the other. Then I will put the case aside for a day or so and revisit those opinions after reviewing my notes from the case. At that point, the decision usually becomes clear. I will then write an entirely new opinion for the benefit of the parent who is likely to be disappointed. I want that parent to fully understand why I ruled the way I did and what factors were most significant in my decision.
Leshen: Will what you do change because of the changes in the law? What do you think are the most important changes?
Kramer: The words "custody" and "visitation" have fundamentally been banished from divorce and paternity law. The law now speaks in terms of "parenting time" and "allocation of parental responsibilities."
Leshen: How then does a judge decide which parent makes decisions regarding, for example, the education, healthcare, religious upbringing and participation in extracurricular activities? In the past, the custodial parent had all of the decision making power.
Kramer: After a parent files a divorce petition, the parents, either together or individually, file a parenting plan.
Leshen: What is a parenting plan?
Kramer: A parenting plan sets out how major decisions are made regarding which school the child attends, what doctor they see, when they will spend time with each parent and many other decisions impacting the lives of the children.
Leshen: What happens if the parents agree on a parenting plan?
Kramer: The court must approve the parenting plan unless it finds it to be unconscionable or involuntarily entered into by one of the parities. The legislature has recognized that parents who agree know what is in the best interests of their children.
Leshen: We know that even well-intentioned parents who live together in an intact family cannot always agree on what is best for their children. What happens if the parents cannot agree?
Kramer: Parents are then required to mediate their parenting difference.
Leshen: What is mediation?
Kramer: Mediation is a process where a trained professional helps the parents communicate better with the one goal of doing what's best for the child.
Leshen: Who pays for that?
Kramer: The parents typically split the cost unless they have a documented inability to pay. The court may then appoint a mediator free of charge. It has been my experience as a trained mediator as well as having been a family law judge for 13 years that the mediation process may save the parents a great deal of money over the years as they can often put their enhanced communication and problem solving skills to work, avoiding needless litigation.
Leshen: What happens if the parents are still unable to agree after mediation?
Kramer: The court will then hold a hearing and decide upon a parenting plan.
Leshen: Sounds like the parents will have given up their power to craft their own plan.
Kramer: Unfortunately, that's true. That's why we encourage parents to come up with their own solutions.
Leshen: If one parent gets to make most of the decisions, does that parent also get most of the parenting time?
Kramer: Not necessarily. The new law provides that even a parent allocated no decision-making rights still has a right to parenting time. It is also possible that a parent allocated more decision-making rights could have less time with the child than the other parent. Decision-making rights and parenting time rights are no longer tied together.
Leshen: What about child support? Will the law change there, too?
Kramer: The law has not been changed but it may be applied differently after Jan. 1, 2016.
Leshen: How so?
Kramer: The present child support law assumes one parent has the children most of the time and the other parent pays child support. The child support amount is calculated using percentage guidelines in the law. Now the parents or the court will be allocating parenting time in an attempt to maximize each parent's involvement in the child's life. It's quite likely that the parenting time allocations in the future will be more even. If that occurs, the child support guidelines may no longer make sense and to be fair the court may have to deviate from the guidelines.
Leshen: Are there other significant changes in the law of divorce and child custody set to take effect soon?
Kramer: Yes. Another significant change is that under the new law the only ground for dissolving a marriage will be irreconcilable differences. All the other old grounds for divorce (mental cruelty, physical cruelty, adultery, etc.) have been eliminated. Parties that have lived separate and apart for six months are presumed to meet the requirement of irreconcilable differences. Parties will no longer have to air their bad behavior in open court in order to be divorced.