Illinois Marriage and Dissolution of Marriage Act Trailer Bill and Parentage Act Trailer Bill To Take Effect January 1, 2017. The “clean-up” bills to last year’s new Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101, et seq., and Parentage Act of 2015, 750 ILCS 46/101, et seq., contain a number of clarifications. The IMDMA trailer bill can be found at P.A. 99-763, and the Parentage Act trailer bill can be found at P.A. 99-769.
New Income Sharing Child Support Statute To Take Effect July 1, 2017. Illinois will be moving from a straight guideline child support state into an “income shares” model effective July 1, 2017. This overhaul of the child support statute includes several revised definitions as well as charts, which will be critical to arriving at any amount for child support and are not yet finalized. The general concept of the statute is that whatever amount is determined to be needed by the child, the parent with the higher percentage of the combined income is to pay the other parent the same percentage of the determined amount as the percentage difference in the parents’ respective incomes. The full statute can be found at P.A. 99-764.
lllinois Supreme Court Overturns Appellate Court and Declares Former Domestic Partner’s Claim for Restitution Barred by Statutory Prohibition on Common-Law Marriage
In Blumenthal v. Brewer, 2016 IL 118781, the Illinois Supreme Court has firmly upheld its prior case of Hewitt v. Hewitt, 77 Ill.2d 49, 394 N.E.2d 1204, 31 Ill.Dec. 827 (1979), and ruled that despite all of the recent and numerous changes to family-related statutes, the statutory provision against common-law marriage (750 ILCS 5/214) remains unchanged and, therefore, unmarried domestic partners cannot bring claims to enforce mutual property rights when those rights arise from a marriage-like relationship between the parties.
Husband’s Settlement Proceeds from Wrongful Conviction Lawsuit Are Marital Property.
In In re Marriage of Rivera, 2016 IL App (1st) 160552, ¶1, the appellate court answered in the affirmative the following certified question: “Whether the settlement proceeds received from a wrongful conviction action are marital property when (a) the coerced confession and initial conviction occurred before the marriage, and (b) the conviction was reversed during the marriage.” The husband was incarcerated beginning in 1992 and married his wife in 2000. In 2001, the appellate court affirmed the husband’s second conviction, and a third trial was ordered in 2005 on the basis of new DNA evidence. The husband was convicted for a third time in 2009. In 2011, the appellate court reversed the third conviction, and he was released from prison in January 2012. In October 2012, he filed a 42 U.S.C. §1983 action, which under federal law accrued when his conviction was reversed, alleging violation of his civil rights based on his wrongful conviction. He then filed a petition for dissolution of marriage in 2014 and in 2015 settled his federal §1983 lawsuit for $20 million. The appellate court found that the settlement proceeds were marital property because a cause of action is marital property if the cause of action accrues during the marriage. Because the cause of action arose only when the third conviction was reversed in 2011, 11 years after the marriage, the settlement proceeds were marital property.
New Maintenance Guidelines Under January 1, 2015, Amendments to IMDMA Maintenance Provision Should Not Be Applied Retroactively
In In re Marriage of Cole, 2016 IL App (5th) 150224, the trial court ordered the husband to pay the wife $2,088 per month in maintenance. The husband appealed, claiming that the court should have applied the revised IMDMA maintenance guidelines that took effect January 1, 2015, which would have resulted in an award of $1,328 per month. In this case, the hearing took place and proofs closed on October 24, 2014, before the new maintenance statute took effect. The trial court took the case under advisement and did not rule until after January 1, 2015. Just because the matter was taken under advisement but not ruled on until 2015 does not warrant retroactive application of the law.
Earned Retainer Fees of $60,000 Disgorged Under the Leveling of the Playing Field Statute
In In re Marriage of Squire, 2015 IL App (2d) 150271, the appellate court affirmed a trial court’s decision concerning interim fee disgorgement in favor of the husband’s attorneys in the amount of $60,000 for fees earned and paid to the wife’s attorneys. The husband earned a six-figure salary, had paid his attorneys $2,500, and owed $53,000 at the time of the hearing. The evidence showed he had a negative cash flow after the payment of marital expenses, which included significant debt. The wife was unemployed but had borrowed $130,000 from her mother to pay her attorneys’ fees. The wife’s attorney took a “friendly contempt” to appeal the disgorgement. Among the claims of error was that the Supreme Court case In re Marriage of Earlywine, 2013 IL 114779, 996 N.E.2d 642, 374 Ill.Dec. 947, was not applicable because it applied only to advance payment retainers. However, because Earlywine did not expressly limit its holding to only advance payment retainers, the court held that the funds need not be sitting in a client trust account in order to be “available” for disgorgement under the interim fee statute.
First District Holds Earned Fees Already Paid Are Not Subject to Disgorgement
In In re Marriage of Altman,2016 IL App (1st) 143076, after a hearing on the wife’s petition for interim fees pursuant to §501(c-1) of the IMDMA, the trial court found that both parties lacked sufficient access to assets or income to pay reasonable attorneys’ fees and ordered (1) an allocation of funds that were held in the wife’s attorney’s trust account and (2) disgorgement of $16,000 from the husband’s attorney, the total of which resulted in each party being allocated $50,500. The husband’s attorney took the issue up on appeal on a friendly contempt and the appellate court reversed. Departing from the Second District’s opinion in In re Marriage of Squire, 2015 IL App (2d) 150271, 53 N.E.3d 71, 403 Ill.Dec. 17, the First District stated that if “leveling of the playing field” was the sole consideration in deciding the issue, they would have reached the same conclusion in Squire. However, the fact that the legislature chose to use the word “available” when referring to funds that could be subject to disgorgement was significant. The court noted the burden lawyers and law firms would face if they had earned fees, paid themselves, and then used that money to pay salaries, overhead, and litigation expenses, but were then later required to pay out a disgorgement order. In the same case, the court also held that the wife was not required to liquidate her nonmarital retirement account in order to pay her attorneys’ fees.
Deviation from Guideline Support and Accompanying Findings Upheld
In Melamed v. Melamed, 2016 IL App (1st) 141453, the issue was whether the trial court erred when it ordered a child support modification from $400 per month to $5,912 per month. The ex-husband appealed the order, claiming that the court did not make the appropriate findings when deviating upward from guideline support. The appellate court affirmed the trial court and noted that the specific language of the IMDMA requires the trial court to determine the minimum amount of support under the guidelines; apply the guidelines unless the court finds a deviation is appropriate; if a deviation is appropriate, state the amount of support that would have been required under the guidelines; and state the reason or reasons for the variance from the guidelines. The statute does not contain the word “shall” when delineating certain factors for the court to consider when deviating from guidelines, and therefore the court was not required to make specific findings relative to each factor listed in the statute when deviating.
Trial Court Correctly Divided Wife’s Teacher’s Pension Without Considering Husband’s Social Security Disability, but Should Have Reserved Maintenance Until Wife Retired
In In re Marriage of Roberts, 2015 IL App (3d) 140263, the wife appealed the trial court’s division of property under a divorce judgment that awarded each party a one-half interest in the wife’s teacher’s pension and requested that she be awarded her pension outright or maintenance. The parties had been married 37 years, and the wife’s retirement from teaching would take effect in the next two years. The husband drew social security disability. The appellate court held the trial court did not properly consider the husband’s social security benefits when dividing the marital property, but reversed the denial of maintenance. Maintenance should have been reserved until the wife’s retirement because the evidence showed that, upon her retirement, she would receive $1,310 per month and be unable to meet her living expenses, while the husband would receive $3,414 per month from his social security and half of her pension and would have the ability to pay maintenance.
Trial Court’s $196,250 Valuation of a Family Business That Managed Investment Accounts with $75 million of Assets Under Management Reversed
In In re Marriage of Johnson, 2016 IL App (5th) 140479, the appellate court reversed a trial court’s finding that the husband’s investment management business that had $75 million in assets under management should be valued at $196,250 after each party submitted business valuations. The appellate court noted several problems with the trial court’s finding, including that the multi-attribute utility model’s objective is to conclude what portion of the total fair market value constitutes enterprise and personal goodwill, not the overall value of the business; that the court did not hear testimony from either expert but just reviewed their reports; and that it was against the manifest weight of the evidence that the court would conclude that the fair market value of a business would be less than what the husband had paid for a portion of the business a year before trial.
Georgia Law, Not Illinois, Controlled the Issue of Contribution of College Expenses, and Therefore
Father Was Not Obligated To Contribute to Emancipated Daughter’s College Tuition
In In re Marriage of Jones, 2016 IL App (3d) 150237, the mother and father divorced in Georgia in 2003 and the mother later moved to Illinois with the parties’ children. In 2014, the mother filed a petition to enroll the Georgia judgment as well as a petition for contribution to college expenses. The Illinois trial court granted the petition for contribution, but the appellate court reversed, holding that under the Uniform Interstate Family Support Act (UIFSA), 750 ILCS 22/101, et seq., Georgia law controlled the issue. The law of the state that issued the initial child support order governs whether a parent will be required to contribute to a child’s college expenses. In Georgia, a parent has no duty to pay for a child’s expenses once a child has reached the age of 18, and because Illinois had to apply Georgia law, the trial court did not have the authority to order the father to contribute to the child’s college expenses.
Thank you for its contributions this month: Donald C. Schiller & Michelle A. Lawless, Schiller DuCanto & Fleck LLP. IICLE Top Ten Family Law FLASHPOINTS of 2016.
In re parentage of A.H. et al, 2016 IL App (1st) 133703. A man who fathered triplets through assisted conception methods in Thailand must financially support them from the U.S. after a Cook County judge properly recognized the foreign court’s parentage judgment, a state appeals panel ruled. Harlow had moved to dismiss the petition in August 2012, arguing the Thai court’s judgment was not entitled to comity since he was never married to Mother and Illinois law prevents sperm donors from being treated as natural fathers when they donate sperm to women other than their wife. Judge Jeanne Cleveland Bernstein denied Harlow’s motion in regard to extending comity to the Thai judgment.
“When we examine the language of the entire Parentage Act to and consider each section in connection with every other section or subsection, the clear and unambiguous language establishes that the statute’s purpose ‘is to provide a legal mechanism for a husband and wife to obtain donor sperm for use in artificial insemination and to ensure that a child is considered the legitimate child of the husband and wife requesting and order, citing the M.J. case.
Furthermore, he consented in writing to the use of his sperm in the GIFT procedure with Mother and signed the consent form under the designation of ‘husband,’” Lampkin wrote, noting Harlow also acknowledged his fatherhood in e-mails that discussed various plans to financially support the triplets. “In addition, he wrote about his plans to claim the three boys as dependents, take tax deductions for his support payments to them and enable them to access their rights of U.S. citizenship, which they had only because he was their father.”
In re Marriage of Wendy LD, 2016 IL App (1st) 160098, December 2, 2016, Cook Co., 6th, Div., CUNNINGHAM, Affirmed. Wife appealed court order awarding custody of parties’ 3 children to husband, five years after court had awarded sole custody of 3 children to wife. Court found that significant developmental concerns had arisen in those 5 years, especially as to the older 2 children, and that strongest factor favoring changing custody to husband was wife’s failure to facilitate and encourage a close and continuing relationship between children and their father. (ROCHFORD and DELORT, concurring.)
In re Marriage of Coviello, 2016 IL App (1st) 141652, October 27, 2016, Cook, ELLIS, Affirmed. Court did not abuse its discretion in not awarding wife the survivor benefit of husband’s military retirement plan. Court discussed several factors it considered in making equitable distribution between the parties, who had been married 10 years. As survivor benefit was not divisible, court considered that husband wanted the option to name a future wife as beneficiary of survivor benefit, which he would be unable to do if it were awarded to wife. Premiums for survivor benefit come out of pension payments, 75% of which belong to husband. Court awarded wife her insurance on husband’s life, at husband’s expense, to compensate for lack of survivor benefit. (HOWSE and COBBS, concurring.)