By H. Joseph Gitlin
Gitlin, Busche & Stetler
The 18th century author, Sir Walter Scott, said, "A lawyer without history or literature is a mechanic."
It has otherwise been put as having to know where you were before charting a path for the future.
It is well for lawyers who practice divorce law to appreciate the history of divorce laws in Illinois.
Illinois became a state in 1818. The Illinois Divorce Act was enacted in 1874. Before that, divorces required an act of the Illinois legislature.
The Illinois Divorce Act of 1874 was amended from time to time, but in 1977 the Illinois Marriage and Dissolution of Marriage Act (IMDMA) was enacted: a brand-new and innovative law. When I practiced law before the IMDMA was enacted, divorce was considered some place between a justice of the peace in a collection case and a real estate closing.
The passage of the IMDMA was, especially for women, as significant as the passage of the United States Civil Rights Act: it gave rights and liberties to women.
Illinois was a title state in regard to property rights.
If the property was registered in the name of the husband, it was his.
This gave the husband his business, gave him his retirement plan, etc. Under the IMDMA, if the asset was acquired during the marriage (except for gift or inheritance) it belonged to the marriage.
Under the IMDMA wives are entitled to maintenance regardless of fault in bringing about the divorce.
A 1997 amendment to the IMDMA also favored women.
It is the "Leveling Amendment," the purpose of which was that the parties in matrimonial proceedings should be in parity for the availability of funds to litigate the divorce. The "Leveling Amendment" also sought to take away the superior advantage lawyers had when lawyers sued the client for fees within the divorce proceedings.
These changes in substantive law presented a new challenge to lawyers. Divorce lawyers gained stature, because they now needed to understand business valuations, income tax ramifications and the complexities of retirement and pension plans.
There were visionaries in the Chicago divorce bar, like Samuel Rinella who, along with his wife Kathryn, founded the divorce firm of Rinella and Rinella. Rinella was sensitive to the fact that Illinois, like most states, did not recognize specialties in the law, so he helped found the American Academy of Matrimonial Lawyers, which is now a national organization with over 2,000 members who are, in fact, specialists in family law.
During the past half-century not all changes in domestic relations law favored women. When the United States changed from an agricultural to an industrial society, the father typically was the chief breadwinner and the mother the chief caretaker for the children. Out of this social structure rose "the tender years doctrine."
This doctrine presumes that custody of children of tender years, and especially female children, should go to the mother. A leading Illinois child custody case before the 1977 passage of the IMDMA was the 1952 Illinois Supreme Court case of Nye , which explained the tender years doctrine.
But the women's movement of the 1960s also brought about a backlash against women, and that backlash did away with the tender years doctrine and instead, by the time of the passage of the IMDMA, made it perfectly clear that awards of child custody cannot be gender-based.
A most significant amendment to the Illinois child support statute was passed in 1985, when the minimum child support guidelines section became effective. Nonstatutory and informal guidelines had been present in many venues in Illinois probably since the early 1960s.
The IMDMA stated that the way the title to an asset is registered does not matter as long as the asset was acquired during the marriage (except for inheritance and gifts) and the case law, early on, was not sympathetic to awards of maintenance.
This rationale was flawed, because in most cases there is insufficient marital property to be distributed to provide for the financially disadvantaged spouse.
This shortcoming was recognized by a 1993 amendment to the IMDMA. The pre-amendment property section, 504, stated that one qualified for a maintenance award if the person "lacked sufficient property, including marital property apportioned to him, to provide for his reasonable needs."
The 1993 amendment to the IMDMA omitted the above-quoted portion, thus recognizing that property awards are usually an inadequate way to provide for a financially disadvantaged spouse.
During my 50-plus-year career in the divorce practice, it has become a sophisticated field of law requiring knowledge of complicated laws and skills. Divorce law is a profession, which I encouraged my children to undertake, and, in fact, my two children became divorce lawyers.