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Order Modifications in Family Law

In the late Cold War, President Ronald Reagan adopted an old Russian proverb, “doveryai no proveryai,” in nuclear arms reduction talks with Russian Premier Mikhail Gorbachev. When translated into English, the phrase means "trust, but verify." That same philosophy applies to family law modification procedures: agree whenever possible to facilitate effective co-parenting, but always get any changes in writing and make sure those documents are enforceable. Such orders often including co-parenting plans, allocated parental responsibilities, and parenting time schedules.

If too much emphasis is placed on either side of the equation, the family's life will be out of balance. It is not cost efficient, from a financial or emotional standpoint, to constantly file motions and counter-motions based on new circumstances. At the same time, an over-reliance on informal agreements and the hope that the other party will “do the right thing” is a recipe for disaster.

It is important to note that side agreements between the parents, even if they are in writing, are never enforceable in family court. But under new changes to the Illinois Marriage and Dissolution of Marriage Act, such side agreements could streamline the modification process.

Expedited Modification

Under the new Section 610.5(e), these agreements can serve as the basis for a motion to modify the parenting plan, even if it has been less than two years since the existing order went into effect. To qualify, the agreement must be:

  • In Use: The parents must actually be exchanging the children at Mom's house instead of Dad's house, for example, and not merely talking about making such a change.
  • Period of time: The agreement must have been in effect for at least six months before the motion to modify is filed.
  • Mutual: Both parents must actually agree; if one parent abides by the terms but does not really agree, the modification may be contested.
  • Voluntary: The same result applies if there was excessive arm-twisting or any other such coercion.

The expedited path is also available for “minor” modifications, a word that is not defined but probably means items like typographical errors or changing a pickup time from 12:00 pm to 12:15 pm. An expedited proceeding is also possible if the modification is necessary to correct a glaring error, like granting unsupervised visitation to a person with a pending criminal case in this area.

Contested Modification

If the expedited path is not available, the motion must be based on a substantial change in circumstances, such as:

  • Job change,
  • Removal of disability,
  • Substance abuse relapse, or
  • Remarriage.

If a contested motion is brought within two years of the existing order, the movant must also show that there is a danger to the children's emotional health or physical well-being.

When life changes make the prior parenting orders unworkable, contact an experienced efamily law attorney in Naperville for a confidential consultation. We routinely handle cases in DuPage County, Will County, and nearby jurisdictions.

Sources:

http://www.leadergrow.com/articles/443-trust-but-verify

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2086&ChapterID=59&SeqStart=8300000&SeqEnd=10000000

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