Divorce can be a trying experience for couples who just can’t seem to make their marriages work; especially if a couple has minor children. When they are parents to a disabled non-minor child, however, the entire process can become extremely complicated. While an experienced divorce lawyer can help individuals evaluate their own particular situation and better understand what they might expect in terms of guardianship and possible non-minor child support, there are a few, more general factors that divorcing couples in Illinois should be aware of.
Although every state in the nation unanimously agrees that parents are obligated to care for their children until they reach adulthood, and even non-custodial parents are obligated to contribute financially to provide for the children’s welfare, once a child reaches the age of 18 in the state of Illinois, or is perceived as an adult, that obligation can change. When a child reaches the age of majority, any custody orders, guardianship orders, and/ or child support orders cease. Unfortunately, this may not be in the best interest of the adult child.
When a child suffers from a mental, physical or developmental disability that is severe enough to significantly hinder his or her ability to provide support for his/herself, an amendment to the Illinois Marriage and Dissolution of Marriage Act (IMDMA) has made it possible for Illinois Judges to order parents to step in and provide support. It is important to remember, however, that such continued support is not automatically ordered, and the decision to award support is at the discretion of the court.
What Factors Do Illinois Courts Consider?
A non-minor child is considered to be disabled if that child has a mental or physical issue that significantly limits a life function, if that child is perceived by others of having such a disability, or it is on record that such a disability exists. When making the decision on whether or not to order continued support for disabled non-minors from one or both parents, Illinois Judges consider numerous factors.
- The current financial resources of each parent, and their expected future resources. Retirement savings could also be considered.
- The current resources of the non-minor. These can include current assets as well as the earning potential of the child.
- Any Social Security income of the child.
- Other resources that are being contributed through local, state, and federal benefits to help ensure the welfare of the non-minor is being addressed.
- The standard of living that the child would have experienced had the marriage not dissolved.
What About Guardianship?
In many situations, disabled individuals live at home with their parents or other family members, and they depend on them to provide care and help them make important decisions. Unfortunately, many parents are under the misconception that they will continue to legally be able to make decisions for their disabled child even after the child reaches adulthood simply because of the non-minor’s impairment. This is simply not the case in Illinois. Even when a disabled adult resides with one or both parents, the necessity for the need of legal guardianship must be established through court. If the court decides that legal guardianship would be in the best interest of the disabled, the court will appoint a legal guardian. When parents divorce, they may wish to consult with a divorce lawyer and decide if they should discuss a plan for the care and support of their disabled child in their divorce decree. Such a plan can legally be established before the disabled child actually turns 18.
It is important to remember that parents aren’t the only ones who can file a petition for legal guardianship of a disabled adult. Other family members, as well as public and private non-profit agencies are also eligible to become legal guardians. In the state of Illinois, in order to obtain legal guardianship the following conditions must be met:
- The guardian must be at least 18 years of age.
- The potential guardian cannot have ever been convicted of a serious crime.
- The potential guardian must be deemed by the court as being “of sound mind”.
- The potential guardian must be a legal resident of the United States.
Additionally, parents may wish to petition for co-guardianship of their disabled non-minor if they are able to agree on major life decisions for the child. If co-guardianship has already been established, the dissolution of the marriage will not affect the guardianship. When divorced parents become unable to agree on decisions that affect the welfare of their disabled child, and a modification of guardianship cannot be agreed upon either, parents will most likely need to consult with their divorce lawyer, and take the case back to court.Go Back <<