Written by Admin | Apr 17, 2018 5:00:00 AM
CHICAGOLAWBULLETIN.COM WEDNESDAY, APRIL 18, 2018 ® Volume 164, No. 76 Serving Chicago’s legal community for 163 years In an ‘irreconcilable differences’ divorc e system, what about marital misconduct? F or lawyers practicing in 5/504(a)] and determining each a spouse, the cohabitation is a the family law arena, a p a re n t’s child support responsibil- MODERN FAMILY basis to deny or terminate sup- common question from a ities [750 ILCS 5/505(a)] explicitly port rights. prospective client is prohibit the consideration of mar- •In instances of domestic vi- what role a spouse’s mis- ital misconduct is resolving these olence, the misconduct will be- conduct plays in the proceedings. issues. come relevant to any protections It is important that the lawyer be As to the allocation of parental necessary and possibly damages clear on the limitations of marital responsibilities (formerly called TIMOTHY as a result of the conduct that can misconduct so that there is no custody and visitation), the law M. DAW be part of the dissolution of mar- misunderstanding as to the focus provides that “the court shall not riage proceedings. of the tasks ahead. consider conduct of a parent that •If a parent continuously is un- Since the inception of the Illi- does not affect that parent’s re- Timothy M. Daw is a senior partner at available or unable to participate nois Marriage and Dissolution of lationship to the child [750 ILCS Schiller DuCanto & Fleck LLP whose in parenting responsibilities due Marriage Act (IMDMA) in 1977, 5 /6 0 2 . 5 ( e ) ] .” practice concentrates on complex financial to his or her choices that have one of the stated purposes of the While the actual misconduct matters, business valuations, tax negative effects on his or her time planning, shareholder divorce, custody statute was to eliminate the role may not be relevant, in some cir- with the children, the conduct by disputes, property division, maintenance of fault in the adjudication of the cumstances the effect of the mis- statute does affect the relation- issues and prenuptial agreements. He can rights and responsibilities under conduct or ancillary issues that be reached at tdaw@sdflaw.com. ship with the child and becomes the IMDMA except as it related to relate to such actions (or inac- re l eva n t . grounds –a reason for the divorce tions) may still be relevant. While It is critical for the lawyer to (Cf. In re Marriage of Von Zuidam, there are many instances where marital relationship spending explain to the client the limita- 162 Ill App 3d 942, 944-45 (1st the effect of misconduct can be large sums on luxury living/items tions on misconduct to avoid a Dist. 1987). relevant, consider the following as while the other spouse is being client focus on issues that will not In 1984, Illinois took a step for- ex a m p l e s : asked to live in a relatively low advance any relevant issues in the ward introducing “no -fault”pro - •If a spouse during the mar- standard of living, in addition to proceedings. While there are visions (“irreconcilable differ- riage spends funds on a significant dissipation, the expenditures can some who will try to threaten or e n ce s ”) to the grounds for divorce. other while still married, these ex- also be compelling evidence of and attempt to use misconduct issues Finally, in 2016, the laws were re- penditures can be re-credited to corroborate a standard of living. to try to achieve some form of vamped, and the only basis for a emotional leverage in the pro- divorce in Illinois is now irrec- ceedings, a client who under- oncilable differences. Keeping the client focused on the relevant issues stands the limitations can make Under the current law, one of better decisions on the focus of is more productive and can lead to clients who the stated purposes of the IMD- the case. MA continues to be “to eliminate are more appreciative ... If misconduct issues evolve and the consideration of marital mis- become the main focus of the pro- conduct in the adjudication of ceedings without being properly rights and duties incident to dis- the marital estate labeled as dis- •If a spouse is refusing to obey tied to a relevant issue, the end solution of marriage, legal sepa- sipation. This determination must support orders while at the same results are a significant expendi- ration and declaration of invalidity consider whetherthe expenditures time spending funds on significant ture of time, very expensive lit- of marriage …” [750 ILCS are for a purpose unrelated to the others, addictions, etc., these is- igation and dissatisfied clients. 5 /1 0 2 ( 9 ) ] . marriage (Cf. In re Marriage of sues can be relevant in enforce- Keeping the client focused on the The statutory provisions for the R o m a n o, 2012 IL App (2d) 091339, ment proceedings. relevant issues is more productive allocation of property [750 ILCS ¶86). •If a spouse is cohabiting with and can lead to clients who are 5/503(d)], determination of main- •In evaluating the standard of someone and he or she is seeking more appreciative, especially as tenance rights [750 ILCS living, if one spouse is in an extra- support or receiving support from referral sources. Copyright © 2018 Law Bulletin Media. All rights reserved. Reprinted with permission from Law Bulletin Media.