Steinberg: Divorcing couples in Illinois will be losing ‘custody’

SHARE Steinberg: Divorcing couples in Illinois will be losing ‘custody’

Illinois divorce law is going through a multiyear overhauling, and July 1 two key elements are changing: custody and child support. | File photo

The statistic that 50 percent of marriages end in divorce is a dusty pre-sexual revolution relic. Demanding people to get married before they canoodle led to unwise, short-lived marriages. With couples getting married at older, more discerning ages, now only about a third of marriages fall apart.

Still a lot.

Despite the significance of divorce, I avoid the topic. Probably because it usually arrives at my doorstep in the form of an unhappy, divorcing spouse laying out his — it’s invariably a guy — tale of woe. I explain the need to present the other side, which surprises him, and he lets the matter drop. Just as well, because each divorce is unique if not strange, sad and petty, and so complicated it’s not worth the space to explain.

Drew Vaughn is not a divorcing spouse, however, but a divorce attorney. He contacted me with actual news — news to me, anyway — that Illinois divorce law is going through a multiyear overhauling, and July 1 two key elements are changing —

custody and child support — and not for the better, according to him.

“Good in concept, awful in practice,” he wrote in an email. “This new law intends to make people believe it is more fair by considering the income of both spouses. Unfortunately, I expect that this will incentivize parenting schedules built around financial concerns and not what’s best for the children.”


In the past, the law assumed the man earned the most and the woman would end up with the kids. Child support was based solely on income. Now the law sees that women can earn more, and acknowledges that time is indeed money. The two aspects, custody and support, will be intertwined, using a complex chart. Vaughn worries that divorcing parents will be inspired to grab more time just to pay less money.

“If Dad has 145 overnights of parenting time (39%), he pays $19,138 per year in child support,” wrote Vaughn. “But if he has one more overnight per year at 146 (40%) he pays $9,569. At nearly a $10,000 difference, that’s an expensive day for Mom, or a lucrative day for Dad.”

That sounds awful. But any legal situation can be parsed many ways.

“I don’t think he understands the statute,” said Andre Katz, who headed the committee drafting the new laws. “One has to do with the parenting schedule, what we used to call ‘custody.’ We don’t have ‘custody’ anymore.”

Vaughn painted losing the word “custody” as mere fiddling with nomenclature. Katz said it is a meaningful change.

“Before it was a winner-take-all proposition,” said Katz. “You’re a medical doctor, your wife gets custody, your wife gets to make the medical decisions.”

The new system, Katz said, “disentangles” the various aspects of child supervision — education, religious, medical — and assigns each to the parent most able or willing to be responsible.

“That’s why we call it ‘allocation of parental responsibilities,” Katz said.

Vaughn sees the potential for abuse. “The tie into parenting time within the formula is the Achilles’ heel,” he said. “Unfortunately, many parents will use this information to treat their children as financial bargaining chips.”

Katz sees improvement. “I think it’s huge, major change,” he said. “In the future, they’ll now look at both parties’ income, I don’t see how that’s a bad thing.”

Who’s right? I considered playing Solomon, then thought better of it and sought more expert advice.

“Nomenclature matters,” said Katharine Baker, a distinguished professor at Chicago-Kent College of Law. “This is positive; the Legislature responding in a relatively costless manner. Nobody likes not getting custody, only getting visitation. There was anger and hurt generated by the terms themselves, using language of winning and losing. I don’t think it is helpful. People are less upset if they’re told they have 30 percent parenting time than if they get ‘visitation.'”

Baker said, as in much of law, the trade-off is between predictability and fairness.

“This is a constant battle,” said Baker. “You want discretion to keep people from gaming the system. The cost of discretion is uncertainty. It’s incredibly hard to predict what a judge will do. The trade-off between discretion and rules is ubiquitous, but particularly in family law. The problem is no one can predict what can happen.”

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