Most Illinois parents whose marriages are ending will need to make decisions about property division and child custody. Although emotions might make these issues difficult to deal with, laws exist that for the most part can be applied in a clear fashion. Embryos created by in-vitro fertilization, however, present a problem because few laws address how to treat them in the event of a divorce, and courts have rarely dealt with this issue.

Technically, frozen embryos fall under the category of personal property. Both parents have a right to them, but a divorce could mean that at least one party no longer wishes to pursue parenthood with the other one. Courts typically refrain from allowing one spouse to impose parenthood on the other unwilling spouse. The prospect of destroying unwanted embryos, however, could cause a court to sympathize with a person who wants to become a parent when the embryos might be the only means to that end.

When these thorny disputes arise, years could go by before a legal resolution emerges. Until then, one or both parties will need to continue paying annual storage fees to the cryogenic facility.

Although there may be difficulty addressing the question of frozen embryos, most matters of child custody have been thoroughly established. A person entering the divorce process could ask an attorney to explain parental rights and how the law might guide the determination of child custody. An attorney could advise the client during negotiations with the other parent while they develop terms for a parenting agreement that addresses custody scheduling, potential relocation and child support. Courts will favor terms that support the best interests of the child, and an attorney can help to establish such an agreement.