The law in Illinois requires divorcing parents to submit a plan for how they intend to care and provide for their children. Parenting plans include provisions for how child custody, officially called the allocation of parental responsibilities in Illinois, should be managed, as well as several other child-related concerns. One part of Illinois parenting plans that often gets overlooked is the “right of first refusal.” Read on to learn what the right of first refusal is and how you can include directions about extra parenting time in your parenting plan.

Maximizing Parenting Time With Right of First Refusal Provisions

If you are a parent who is getting divorced, you may worry that you will not get to spend as much time as you want to with your child once the divorce is finalized. Parents who are used to seeing their children every day can understandably have a difficult time adjusting to a parenting schedule where they see their children less often. The right of first refusal refers to the right that parents have to spend time with their children when the other parent cannot fulfill his or her parenting time obligations.

For example, imagine that your child’s other parent goes on a business trip during one of the weekends that he or she is assigned parenting time. Instead of the parent calling a babysitter or other individual to care for the child in his or her absence, the right of first refusal can require the parent to ask you if you are able and willing to care for your child during the business trip. If you “refuse” the extra parenting time, then the other parent would be permitted to hire a babysitter or find alternative childcare.

Issues of family law, including divorce, parental responsibility concerns, and child support, can become extremely contentious and stressful.  Too often, the opposing parties become so focused on “winning” or proving a point that they lose sight of the real matters at hand. This can be especially tragic when children are caught in the middle, as they often become collateral damage when they should be the primary focus.

If you are in the midst of an ongoing legal struggle, there is, unfortunately, no quick fix. But despite being a popular Hollywood cliché, you may choose to take some inspiration from the spirit of the Christmas season. Perhaps, instead of continuing to find ways to “win,” consider proposing a more cooperative approach to settling your differences. For many families, mediation may be just the solution they need.

What Is Mediation?

Mediation is a form of alternative dispute resolution that is used in a variety of applications under the law. In general, the process involves opposing parties meeting with a third party facilitator called a mediator, who is often also a trained attorney. With the mediator’s guidance, the parties discuss and negotiate the various aspects of their case, eventually working toward a mutually agreeable compromise. Civil courts encourage would-be litigants to seek mediation and to reserve the courtroom for those who simply cannot work out their differences any other way.

Has your marriage reached the point where it is no longer a healthy part of your life? A marriage can deteriorate for many reasons, but according to Illinois law, there is only one legal basis for divorce. Thanks to changes to the state’s family law statutes several years ago, a divorce can only be granted on the grounds that irreconcilable differences have pushed the marriage beyond the point of repair.

Understanding Irreconcilable Differences

When Illinois permitted fault-based divorce, such grounds were fairly straightforward. They included behaviors like adultery, repeated mental or physical cruelty, abandonment, and other actions that were easy to understand, even if they were difficult to prove during a divorce. Irreconcilable differences, on the other hand, are rather vague. In fact, there is no single definition of irreconcilable differences contained in the law. Instead, the phrase is understood to mean that the spouses are no longer able to remain in a marital relationship with one another.

It is important to realize that the actions that were once grounds for a fault-based divorce could be contributing factors to a couple’s irreconcilable differences. If your spouse cheated on you, for example, that could be enough for you to recognize that the marriage is broken and cannot be fixed. On your divorce paperwork, however, you will need to cite irreconcilable differences instead of adultery.

As you go through the divorce process, you and your spouse will have many issues to consider and address. For example, you must decide how you will divide your marital assets, make arrangements regarding your children, and think about how you will manage your post-divorce life. In many divorce cases, the issue of maintenance—also known as spousal support or alimony—can be challenging, as it is not easy to “put a price” on the end of your marriage.

You might be perfectly content to allow the court to make decisions about maintenance, but it is important to keep in mind that you have the right to develop an agreement with your spouse that meets both your needs while keeping the court out of the decision-making process.

Cooperate and Communicate

Frankly, divorce is never easy, but more and more couples today are approaching the process with a spirit of cooperation. It is not uncommon for both spouses to reach the mutual conclusion that they would be better off apart than they would be if they stayed married. The spouses still care about one another, however, and have no desire to cause one another unnecessary stress by dragging out the divorce process. With a similar attitude, you and your spouse could develop a spousal maintenance arrangement quickly and efficiently.

If you are a parent who is thinking about getting a divorce, you likely have many concerns regarding your children. You may worry about how the children will adjust to a two-home arrangement or how they will take the news of the divorce. You may also worry about how much time you will get to spend with your kids now that you must share parenting time with your children’s other parent.

It can be incredibly difficult for parents to transition to a more limited parenting arrangement after they have been highly involved in their children’s lives on a daily basis. Fortunately, there is a way to make sure parents have the maximum amount of parenting time possible through the “right of first refusal” provision.

Illinois Parenting Agreements

Parents who plan to share custody of their children in Illinois must complete a parenting agreement or parenting plan. In this agreement, you and your child’s other parent will write down your plans for how you will share parental responsibilities (formerly called custody) and parenting time (formerly called visitation.) You must also make note of how major decisions about the children’s lives will be made and how parents will communicate with the children during the other parent’s allotted parenting time. There are also several “rights” which parents must agree upon, including the other parent’s right to be informed about travel plans, healthcare issues, emergencies, and other important concerns in the children’s lives. Lastly, parents must address the right of first refusal.

If you are thinking about filing for a divorce from your spouse, you will eventually need to know how to do so. Even if you and your spouse are in total agreement that a divorce is necessary, you are likely to have many questions about the divorce process.

Depending your circumstances and the dynamic of your relationship, you and your spouse may very well have spent many months preparing for your divorce—both logistically and emotionally—but the divorce does not formally begin until one of your files a petition for dissolution of marriage with the court. The Illinois Marriage and Dissolution of Marriage Act (IMDMA) provides rules regarding who is eligible to get divorced in the state and where to file your petition.

Illinois Residency

You qualify to have your divorce handled in the state of Illinois if you or your spouse have been a resident of the state for no less than 90 days prior to the filing. If you or your spouse were stationed in Illinois as part of your military service, your time in Illinois would count toward the residency requirement.

When a married couple decides to divorce, they have two options for property division: the couple can decide how to split their marital estate or the courts can make this decision. Usually, court intervention is reserved for couples who cannot come to an agreement about how assets and debt should be divided. Illinois courts use a methodology called “equitable distribution” to fairly divide assets and debt between the parties in a divorce.

When one spouse wastes or recklessly depletes marital funds, this is referred to as “dissipation.” If you have concerns that your spouse has dissipated assets, you may be able to recover the cost of these assets during property division.  

What Are Dissipated Assets?

In the realm of family law, the term “dissipation” generally means to waste by misuse or to spend extravagantly. The Illinois Supreme Court has defined dissipation as one spouse using marital funds for purposes not related to the marriage while a marriage is in the midst of an “irretrievable breakdown.” Not just any spending is considered dissipative; the spending must take place during a certain timeframe. The superfluous spending must be substantial, not beneficial to the marriage, and it must take place after the irretrievable breakdown of the marriage has begun. This “breakdown” is generally considered to be the time when the couple has ceased attempts at reconciliation and when divorce is inevitable.

A divorce can be considered a good decision for some family units. However, when there is a child involved, the process can sometimes become contentious. Illinois law allows for parents to set up a schedule for child custody, now referred to as “allocation of parental responsibilities.” These are all based on what is in the best interest of the child.

How Is Child Custody Determined?

Most of the time parents agree to the terms of the allocation of parental responsibilities in court. If the parents cannot come to an agreement, then a judge will decide which parent will act in the best interest of the child. The court will decide which parent--or sometimes both--can make the best choice for the child in many different areas, including:

Going through a divorce can be a messy process, especially when it comes to splitting the assets between the two partners. Sometimes, it is hard to agree upon how to divide certain pieces of property, businesses, monetary assets, etc. so that both parties can separate happily. This is why many people do not enter a marriage without a prenuptial agreement. This is a legal and binding document signed before a marriage begins, and it predetermines who is entitled to what assets in case of a divorce.

What Can Be Included in a Prenuptial Agreement?

Illinois law says that issues related to a couple's children, such as child support and the allocation of parental responsibilities, may not be affected by a prenuptial agreement. Things that can be protected by means of a prenuptial agreement include: