CHAMPAIGN, Ill. — Changes to Illinois divorce laws in 2016 that were expected to speed up cases; discourage adversarial, lengthy litigation; and more evenly distribute parents’ time with their children had little impact on these factors, a new study reports. However, the amended statutes did encourage more divorcing couples to jointly share major decision-making responsibilities for their children, the researchers say.
The co-authors — University of Missouri human development and family science professor So Young Park and University of Illinois Urbana-Champaign human development and family studies professors Jennifer Hardesty and Brian Ogolsky — say that the amendment was a significant step toward modernizing the state’s divorce laws. However, they also believe that its structural reforms alone may not be enough to transform divorcing couples’ adversarial relational dynamics and the impact these have on divorce and family court cases.
The team says that systemwide changes are needed — in legal culture and divorcing parents’ mindsets about win-lose outcomes in their cases — along with access to support and resources to help individuals effectively navigate separation and the decision-making processes involved in dissolving their marriages and making parenting plans for their children.
“For many couples, achieving balance within marriage is already fraught with relational and systemic barriers; thus, expecting harmony and equity in postdivorce arrangements may seem like a cultural leap,” said Park, the first author of the study, who began the research during her graduate work at Illinois. “Parenting, custody and decision-making are tightly bound to the dynamics of couples’ relationships, and meaningful change likely requires a broader cultural shift — a reimagining of how families are supported before separation.”
Published in the journal Family Relations, the study was based on the team’s review of 240 divorce cases that involved minor children and were filed in the same Illinois county. Half of the cases were filed between 2009 and 2013 — prior to the amendment — and the other half were filed from 2016-19, after it took effect.
In addition to abolishing fault-based grounds and requirements to provide evidence of spousal wrongdoing such as abuse or adultery in divorce proceedings, the amendment eliminated the mandatory separation period prior to divorce. Terms such as physical custody, visitation and legal custody that were viewed as outdated and combative were removed from the statutes in efforts to reduce parental conflict and promote divorcing individuals’ buy-in with these arrangements.
Rather than visitation and physical custody, the amended statutes refer to “parenting time,” which is defined as the period when either parent is in charge of the child, engages in routine caregiving and is responsible for making nonsignificant or emergency decisions on their behalf, in accordance with the agreed-upon parenting plan. Likewise, the definition of “legal custody” is expanded into four domains of significant decision-making — education, health, religion and extracurricular activities — that can be shared by the parents or awarded solely to one of them, according to the study.
Currently, parents must agree on a joint parenting plan that resolves all issues pertaining to their minor children prior to or within 120 days after the divorce is granted, according to the study.
“These revisions were intended to minimize the potential harm to children by promoting collaborative co-parenting and expanding couples’ autonomy and options for caretaking responsibilities,” Park said. “Lawmakers also sought to improve court efficiency by discouraging prolonged litigation and expediting resolution of child-related issues.”
Regardless of when the cases in the sample were filed, the team found that the amount of time that elapsed between the divorce filings and the final dissolutions was comparable at slightly more than 10 months. However, the team found that the amendment had little impact on the number of postdissolution filings, including the numbers of motions and court orders related to parental responsibility — “raising questions about (the amendment’s) effectiveness in reducing adversarial processes,” the team wrote.
To assess the statutes’ impact on parental equity, the team compared the allocations of parenting time and joint decision-making responsibilities in postamendment cases with the proportions of physical custody, legal custody and visitation that were awarded in the pre-amendment divorces.
Among the divorces that were filed prior to the new laws, the researchers found that 62% of cases awarded the responsibility for making significant decisions about the children — i.e., legal custody — to just one parent, solely to the mothers in more than 94% of the divorces. However, this shifted dramatically after the law was amended, when more than 63% of divorcing couples were awarded joint responsibility for making significant decisions about their minor children, the team found.
Most divorces in the study had structured parenting time arrangements with set schedules, and the team looked at the numbers of overnight and day visits that were allocated to each parent in these cases. Children’s number of overnight stays with each parent are used to determine whether they have split or shared physical care and to award child support accordingly. In shared care, children spend at least 40% of their overnights each year with each parent, Park said.
Based on the number of overnight visits, 14% of the parents in the pre-amendment cases and 20% of those who filed after the law changed shared care for their children, the team found. Despite the amendment’s meaningful association with parents being allocated greater joint responsibility for making major decisions for their children, it did not significantly affect the amount of time parents were awarded with them.
States are updating their divorce laws in their own ways, Park said. But because the Illinois amendment reflects where divorce law is broadly heading, the takeaway for lawmakers is that what decides whether a reform changes anything is its design — including the resources and support built in around it, not simply its passage.
“Even an incomplete reform can matter — such as our findings that more parents were jointly entrusted with the major decisions in their children’s lives. What we would like to see is the law continuing to evolve in a direction that supports families as they move through this critical transition,” Park said. And knowing whether a given design works the way it was intended is where studies like this earn their keep, she said.
“It will be important to reassess the effects of the Illinois divorce law reforms in another five years or so to determine whether other changes surface after a longer postamendment period,” Hardesty said.
