Addressing matters related to child custody is often one of the most difficult aspects of getting a divorce. Unmarried parents may also need to address this issue, and both parents may be looking to determine how they can share custody of their children. In Illinois, joint child custody is generally presumed to be in the child's best interests unless there is evidence showing that it would not be. However, understanding exactly what joint custody entails is not always easy, and parents will need to be aware of how legal and physical custody are addressed in Illinois law.

Understanding Joint Child Custody

When matters involving child custody are addressed in family courts, the decisions made will usually be separated into two distinct categories, commonly referred to as legal and physical custody. Legal custody, which Illinois law refers to as the "allocation of parental responsibilities," refers to decision-making power for things like education and medical care. Physical custody is known as "parenting time" in Illinois, and it includes any time that children spend in the care of a parent. Physical custody will address where children will primarily live and when they will stay in each parent's home.

In cases where parents have joint legal custody, each parent will have a say in making decisions about how their children will be raised. Depending on a family's unique circumstances, different areas of responsibility, such as decisions related to medical care or education, may be the primary or sole responsibility of one parent. However, regardless of how parental responsibilities are allocated, each parent will be able to have reasonable amounts of parenting time. A parent's rights to parenting time may only be restricted if there is compelling evidence showing that this is necessary to protect the children's best interests.

No marriage is perfect, and married couples may encounter relationship issues for a variety of reasons. Some common factors that can lead a couple to grow apart include disagreements about finances or how to raise children, changing priorities that cause a couple to be incompatible, or extramarital affairs. For those who believe that they can no longer make their marriage work, divorce may be the best option. However, many couples are not ready for this permanent, final step, and they may first wish to separate on a trial basis. In other cases, a couple may prefer to stay legally married, even if they no longer wish to have a close relationship or live in the same home. This will allow them to maintain certain benefits and avoid the stigma of a divorce. In these situations, legal separation may be the ideal option.

The Process of Legal Separation in Illinois

For married couples who live in Illinois, a legal separation is handled in a very similar manner as a divorce. The process begins when one spouse files a petition for legal separation with the court in their county of residence. Once the paperwork is filed, the other spouse will be served with the petition and given 30 days to file a response. If both spouses agree on the terms of their legal separation, they can sign a separation agreement that will be submitted to the court.

A separation agreement will need to address multiple issues related to the couple's marriage and separation, including:

When parents get divorced, they may put child custody arrangements in place to ensure they can be closely involved in raising their children. Maintaining strong parent/child relationships in the years following a divorce can be crucial for a child's well-being. However, these relationships may be affected by a parent's decision to relocate to a new home. If a parent plans to move with their children to a different city or state, and this relocation would impact child custody or parenting time, the parent will usually need to request a post-divorce modification. By understanding the specific laws in Illinois that govern parental relocation, parents can determine their options for resolving disputes in these situations. 

When Are Parental Relocation Requests Necessary?

A move to a new home by a parent will only be considered a “relocation” in certain circumstances. A relocation request may be made by a parent who has been allocated the majority of the parenting time with the couple’s children, meaning that children live primarily in their home. These requests may also be appropriate in cases where children spend an equal amount of time with both parents. Parents will need to request approval for a relocation in the following circumstances:

• A parent currently lives in one of the counties in the Chicago area (DuPage, Kane, Will, Cook, McHenry, or Lake), and they will be moving at least 25 miles away based on the driving distance determined using an internet mapping service.

  ...

A prenuptial agreement, or prenup, can be an important legal document that protects married spouses. As a contract between two parties who are planning to get married, a prenup will detail how different issues will be handled if the couple chooses to get a divorce in the future. Typically, a prenuptial agreement will be limited to addressing financial issues, such as property division or spousal maintenance. A prenup can provide both parties with the assurance that certain issues will be handled correctly if their marriage ever ends, and it can remove the possibility of conflict by resolving some disputes ahead of time. However, to avoid disputes related to the terms of an agreement, it is important to make sure a prenup will be valid and enforceable.

Addressing Concerns About Prenup Enforceability

A prenuptial agreement is a legal contract, and both parties will need to be sure they fully understand all of the terms of the agreement and have the mental capacity to make sound decisions about financial matters. Once a prenup has been signed, and a couple has been legally married, its terms will usually be enforced in the event of a divorce. However, there are a few rare situations where a prenup may be determined to be unenforceable.

In some cases, a prenup may be found to be invalid because one spouse did not sign the agreement voluntarily. In some cases, a spouse may have signed an agreement due to coercion or duress, which may include threats to end the relationship or pressure related to social or religious norms. This can sometimes be an issue in Islamic marriages, and the payment of a mahr or dowry will sometimes be accompanied by a request to sign a marriage contract that may function as a prenuptial agreement. In these cases, a spouse may feel that they have no other option but to agree to the other spouse’s terms, even if this would put them in an unfair financial position. Demonstrating that coercion occurred can sometimes be difficult, and a person who signed an unfair agreement may end up being bound to its terms.

In most family law cases involving children, child support will be ordered. Child support is usually a factor when parents choose to divorce, but it may also need to be addressed in situations where parents are unmarried. This form of support is not meant to benefit or penalize either parent, but it is instead a right that is afforded to children so that their ongoing needs will be met. Parents will need to understand how child support payments will be calculated, and depending on their unique circumstances, they may also be ordered to contribute to additional expenses on top of child support ordered by the court.

How Parents May Share Children’s Expenses

Child support obligations are determined based on the income earned by each parent, and in some cases, the parents’ respective amounts of parenting time may also factor into these calculations. This “basic support obligation” is intended to cover children’s daily needs, and the parent who receives payments may use them to address the costs of food, clothing, and housing. However, there are usually other costs involved in raising children, and in addition to the basic obligation, expenses such as the following may need to be added to this amount:

• Health care - Parents must ensure that their children will be covered by a medical insurance policy. Most of the time, coverage will be available through health benefits provided by one parent’s employer. When obtaining coverage, parents may calculate the amount that will be paid to provide coverage for children, and one parent may be required to reimburse the other for a portion of this amount. Other types of health care costs not covered by insurance may also need to be addressed, such as co-pays for doctor visits, medications, and any medical equipment or assistive devices that are needed.

  ...