They say you should never talk about politics, sex or religion in polite company. Debating some issues only lead to disagreements and hurt feelings. Well, when you’re getting divorced, you already disagree while your feelings are hurt so you might as well discuss uncomfortable issues while you’re at it. So, what happens with religious issues when you are getting divorced in Illinois?
The Chicagoland area is a very diverse place. A multitude of religions are practiced within Illinois. These religions usually have elaborate traditions related to both marriage and divorce. For these reasons, it is important to understand how Illinois civil (secular) divorce courts can affect the religious requirements a devout person must observe while getting divorced in Illinois.
Execution Of Religious Duties Pursuant To Divorce
Long before there were divorce courts, there were formal religious practices related to divorce. So, in the eyes of that religion, a person is not completely divorced until some religious duty is performed.
For people in the orthodox Jewish faith, this might be signing the “get” which allows for the official religious divorce (and subsequent remarriage) of the parties.
For people in the Muslim faith, they may have to observe the dictates of a “mahr” which allows for additional or substitute payments from the husband to the wife if there is a divorce.
The Catholic faith has annulments in lieu of divorce.
Can an Illinois divorce court force a person to comply with a religious divorce ceremony or obligation?
Both the United States and the Illinois Constitutions seem to say “No, you cannot force anyone to do anything of a religious nature if they don’t want to.”
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” U.S. Const. amend. I
“No person shall be required to attend or support any ministry or place of worship against his consent, nor shall any preference be given by law to any religious denomination or mode of worship.” Ill. Const. 1970, art. I, § 3.
So, if you need your spouse to participate in some final ceremony for your own religious edification, a court will not order it…even if your spouse is and always was practicing the same religion.
“Courts must resolve disputes involving religion by applying neutral principles of secular law in such a manner as to avoid excessive entanglement with religious doctrine.” In re Marriage of Iqbal and Khan, 11 NE 3d 1 – Ill: Appellate Court, 2nd Dist. 2014
There is an exception, though. If your spouse entered into a contract to perform the religious ceremony or obligation, that contract remains enforceable by an Illinois court despite the contract’s religious character.
An Illinois divorce court can order the enforcement of a religious contract so long as “the order has the secular purpose of enforcing a contract between the parties. The right to enter into contracts is recognized by both the Federal and State Constitutions. (U.S. Const., art. I, § 10; Ill. Const. 1970, art. I, § 16.)” In re Marriage of Goldman, 554 NE 2d 1016 – Ill: Appellate Court, 1st Dist. 1990
But, these religious contracts still have to meet all of the requirements of any other contract in order to be enforced: offer, acceptance and consideration. Religious contracts don’t usually contain these required elements. Religious contracts just presume the other party is a good, faithful person whereas secular contracts assume the opposite…that’s why they have to be bound by contract.
Children And Religion In An Illinois Divorce
Religion and divorce rarely intersect and when they do, it’s almost always about what religion the children will be exposed to and participate in.
“The court shall allocate to one or both of the parents the significant decision-making responsibility for each significant issue affecting the child. Those significant issues shall include, without limitation, the following:
Religion, subject to the following provisions:
(A) The court shall allocate decision-making religious upbringing in accordance with any express or implied agreement between the parents.” 750 ILCS 5/602.5(b)(3)(A)
So, the parties can agree to religious matters (which they usually do). Otherwise, the court has to allocate the religious decisions to one particular parent based on the best interests of the child.
The court will not allocate decision-making regarding religion to a parent who has just recently converted to a religion. As with most things regarding children, an Illinois divorce court strives to preserve the status quo.
“The court shall consider evidence of the parents’ past conduct as to the child’s religious upbringing in allocating decision-making responsibilities consistent with demonstrated past conduct in the absence of an express or implied agreement between the parents.” 750 ILCS 5/602.5(b)(3)(B)
“The court shall not allocate any aspect of the child’s religious upbringing if it determines that the parents do not or did not have an express or implied agreement for such religious upbringing or that there is insufficient evidence to demonstrate a course of conduct regarding the child’s religious upbringing that could serve as a basis for any such order.” 750 ILCS 5/602.5(b)(3)(C)
Beyond looking what the parties did in the past (which usually isn’t helpful because the parents were probably the same religion), the court shall allocate decision-making responsibilities according to the child’s best interests.
The parent who does not decide religious matters for the child will have to take the child to scheduled religious events during their parenting time. Taking children to a religious event is not an accommodation of the other parent’s religion and thus a violation of your own religion. “Rather, it is in the nature of an accommodation to be made on behalf of the child by the noncustodial parent, and involves the noncustodial parent to a degree when the child’s obligation occurs during a period of visitation.” In re Marriage of Tisckos, 514 NE 2d 523 – Ill: Appellate Court, 4th Dist. 1987
Custody and Religion In Illinois
While Illinois law does consider religion to be an important facet of a child’s upbringing, an Illinois court will not weigh overall custody decisions and parenting time based on either parent’s religion or extent of that parent’s religiousness.
“A party’s “religiousness,” standing alone, is an uncertain guide to his fitness as a parent.” In re Marriage of Zucco, 501 NE 2d 875 – Ill: Appellate Court, 5th Dist. 1986
Disregard for a parent’s religiousness has been the law of the land in Illinois for almost 150 years.
“It is unnecessary to say, that a woman may attend church, may teach in a Sabbath school, and play both piano and organ, and yet be wholly unfit to be the mistress over a girl reared in tenderness and affection.” Hewitt v. Long (1875), 76 Ill. 399, 402-03.
Religious Holidays And Children In An Illinois Divorce
There is not really a law in Illinois regarding religious holidays so much as an underlying logic within which divorcing religious parents operate.
The parties to an Illinois divorce with children must enter into an Allocation of Parenting Time and ParentalResponsibilities which outline exactly what time frames each parent will exercise parenting time.
If either parent is religious, they can specify the religious holidays in which they want to exercise parenting time.
If the parents are the same religion, the religious holidays will likely rotate between them like secular holidays. This way there is a equal division of parenting time for special occasions.
If only one parent wants a religious holiday, that parent will likely get the religious holiday and the other parent will get some kind of make-up time in exchange.
If religion is a big factor in your divorce and you want to speak with someone who accepts and understands your faith, contact my Chicago, Illinois family law office to speak with an experienced Chicago divorce lawyer.