Frequently Asked Questions About Post-Divorce Modifications in Illinois

 Posted on November 11, 2022 in Divorce

Getting through the divorce process can be difficult for everyone involved. Spouses will need to address multiple details related to their finances and property, and in addition to determining how to divide marital property fairly, they will also need to make sure they will be able to meet their needs going forward. Parents who get divorced will need to make decisions about the custody of their children, and child support orders will be put in place. Addressing all of these issues and resolving the various disputes that may arise can be stressful, time-consuming, and expensive. Because of this, those who complete the divorce process are usually ready to put these matters behind them and move forward with their lives. However, in the years following a divorce, questions may arise about whether the orders put in place in family court can be modified. 

If you have experienced changes in your life after finalizing your divorce, you will likely have many questions about what types of modifications you can request and the procedures you will need to follow in these cases. The attorneys of Weiss-Kunz & Oliver, LLC can answer any questions you may have about these issues, and we will inform you of your rights and advise you on how to proceed as you request a modification. We will provide you with representation in court hearings, and we will advocate on your behalf to ensure that your rights and your children's best interests will be protected in any modifications that the court puts in place.

How Do I Modify a Court Order?

If you would like to modify your divorce decree, your parenting plan, or other orders put in place upon the finalization of your divorce, you must file a Petition for Modification with the circuit court in the county where the original order was entered. You will also need to serve the Petition on your ex-spouse, and they may file a Response. Once the Petition and Response are filed, the court will schedule a hearing. At the hearing, both parties will have an opportunity to present evidence and argue their position. After considering all of the evidence, the judge will make a decision on whether modifications will be appropriate. If the judge decides to make modifications to previous court orders, a new order will be issued detailing the modifications that have been put in place. Both parties will be required to abide by the terms of this order going forward.

How Do I Know if I Qualify for a Post-Divorce Modification?

Generally, modification requests will only be granted if you can show that there has been a substantial change in circumstances since the entry of the original divorce decree. These changes may involve issues that affect your income and financial resources, your living situation, your health and well-being, or the needs of you or your children. Changes must usually be significant enough that they require substantial adjustments to orders that were previously put in place. In some cases, modifications may be based on issues that were not contemplated by the parties at the time of the original divorce, such as the discovery of debts that had not been addressed or the re-emergence of a health issue that had affected a person during their marriage.

Can Changes Be Made to Decisions About Property Division?

Most of the time, court orders related to the division of marital property are permanent, and they cannot be modified after a divorce has been finalized. However, there are some situations where a couple may return to court to address issues that have arisen or been discovered after completing the divorce process. For example, if you discover that your spouse had hidden assets from you, or if your spouse failed to disclose financial information as required during the divorce process, you may be able to file a petition to reopen the case and address these issues, ensuring that you will be able to receive a fair and equitable share of all marital assets.

How Long Do I Have to Wait to Modify Child Custody After My Divorce?

Illinois law states that decisions about the allocation of parental responsibilities (also known as legal custody) cannot be modified within two years after a child custody order is put in place. However, exceptions may apply in situations where a child may be at risk of harm. In these cases, a parent will need to provide evidence showing that under the current arrangements that have allocated decision-making responsibilities between parents, a child is at a serious risk of suffering physical, psychological, or moral harm, or the child is likely to experience significant impairments to their emotional development. This is a high standard to meet, and if you believe that your child is at risk, you will need to make sure you provide the court with the proper information to show that a modification is needed.

Requests to modify parenting time (also known as physical custody), on the other hand, will not require a waiting period. These requests may be made on the basis that there has been a substantial change in circumstances and that modifications are necessary to protect children's best interests. Modifications to parenting time may also be made in cases that do not involve substantial changes in circumstances if these modifications involve minor adjustments to parenting time schedules, if modifications reflect actual arrangments that the parents have been following for at least six months, or if parents are in agreement about the modifications. A parent may also request a modification based on circumstances that the court was not aware of at the time the child custody order was originally created and which would have affected the decisions about child custody.

What Is a Significant Change in Circumstances?

When requesting a modification to child custody or other orders put in place during a divorce, you will usually need to show that major changes have occurred that have affected you, your ex-spouse, or your children. These may include changes to the income and financial resources of either party, such as the loss of a job or an injury or illness that has affected a person's ability to work. Other changes that have affected the lives of family members may also play a role in these cases, such as a marriage to a new spouse, health issues that have affected a parent's ability to handle childcare responsibilities, plans to move to a new home, or criminal charges that may result in incarceration or other restrictions.

When Can I Modify a Child Support or Spousal Support Order?

If you pay or receive child support or spousal support, modifications to these orders may be appropriate if you or your ex-spouse have experienced substantial changes to income or financial resources or if the needs of you, your ex, or your children have changed. For example, if you currently pay support and have lost your job, you may request a modification that will lower the amount you are required to pay until you are able to find new employment. Child support may also be adjusted based on changes to children's needs, such as when a child experiences a serious illness and parents will be required to divide the costs of medical treatment. Modifications to spousal support may be appropriate if the recipient has become self-sufficient and no longer needs financial assistance, and support may be terminated if the recipient remarries or cohabitates with a new romantic partner.

Will Post-Divorce Modifications Be Required if I or My Ex-Spouse Plan to Move?

If you do not have children, either you or your ex may move to a new home whenever and wherever you wish. However, if you share custody of your children, a relocation by either parent may affect parenting time arrangements and other issues related to child custody and child support. A custodial parent (that is, the parent with the majority of the parenting time or either parent in cases where physical custody is shared equally) must receive approval for a relocation in certain circumstances.

Illinois law states that approval will be required for a parental relocation in which a parent living in one of the counties in the greater Chicago area (Cook, DuPage, Kane, Will, Lake, or McHenry) will be moving at least 25 miles away from their current home, a parent living in another Illinois county will be moving at least 50 miles, or a parent living in Illinois will be moving to a home in another state that is at least 25 miles away from where they currently live.

In cases involving parental relocation, a judge will review a request to modify a parenting plan and determine whether the requested changes will protect the children's best interests. The decisions made may address whether a parent will be permitted to relocate or whether adjustments will be made to parenting time schedules or other child custody issues. A judge will look at a variety of factors when determining what modifications may be made, including the opportunities for education and other benefits for children at both locations, how a relocation will affect children's relationships with extended family members, how to minimize any negative effects on parent-child relationships, and how transportation arrangements for children will be handled.

Can Post-Divorce Modifications Put Child Custody Restrictions in Place?

If a parent's behavior or lifestyle choices may endanger their children's well-being, the other parent may ask for modifications to child custody and parenting time that will restrict the parent's access to the children. In these types of modification requests, evidence will need to be provided to show that the parent has engaged in conduct that has put their children at risk of harm. For example, if a parent has a substance abuse problem or has been accused of committing domestic violence, the other parent may ask for restrictions to be put in place to protect their children's safety and well-being. Restrictions may also be requested in cases where a parent has consistently interfered with the other parent's parenting time or their access to the children.

Restrictions that may be put in place following these types of modification requests may include:

• Reduction of a parent's parenting time or parental responsibilities.

• The requirement for parenting time to be supervised by the Department of Children and Family Services or another third-party supervisor.

• Requiring the exchange of children between parents to take place in specific locations or through a third-party intermediary.

• Prohibiting a parent from communicating with or going near a child or the other parent.

• Prohibiting a parent from using alcohol or drugs during their scheduled parenting time or within a specific period of time before they will spend time with the children.

• Requiring a parent to post a monetary bond to ensure that they will return the children to the other parent at the conclusion of their scheduled parenting time.

• Requiring a parent to receive treatment to address substance abuse or domestic abuse.

Contact Our DuPage County Post-Divorce Modification Attorneys

If you are considering filing for a post-divorce modification, it is important to speak with an experienced Elmhurst divorce lawyer who can review your individual case and provide guidance on the best course of action moving forward. At Weiss-Kunz & Oliver, LLC, we have extensive experience handling all types of modifications, and we can help you understand your requirements while advocating on your behalf to ensure that your rights will be protected. Contact us today at 312-605-4041 to schedule a consultation.

Sources:

https://www.ilga.gov/legislation/ilcs/documents/075000050k510.htm

https://www.ilga.gov/legislation/ilcs/documents/075000050K610.5.htm

https://www.ilga.gov/legislation/ilcs/documents/075000050K603.10.htm