Apr 04, 2019

Family Law Flash Points - April 2019

1.Premarital agreement found to be valid and enforceable based on limited hearing focused solely on issue of voluntary waiver of further disclosure provision of Premarital Agreement Act. Husband contested the validity of a premarital agreement. He had received the document several weeks prior to the wedding, met with a lawyer one time about the contents, but was not formally represented when it was executed. He thought that the purpose of the document was to earmark wife’s family business assets as her non-marital property, but wife took the position that the agreement resolved all classification issues of the estate. The trial court limited the issues both for discovery and hearing to whether husband voluntarily signed the document and whether he voluntarily waived further disclosure. Such a limitation was within in its discretion. Husband argued that unless wife had made a fair and reasonable disclosure, he could not be deemed to have voluntarily waived the right to disclosure beyond what was made, and that he should have been entitled to do discovery on what assets the wife had at the time of execution. The Appellate Court disagreed and held that nothing in the text of Section 7(a)(2)(ii) suggests that there must be a certain degree of disclosure, or knowledge of the undisclosed assets, before a party can waive the right to further disclosure. A waiver can be voluntary even where the other party has disclosed no assets at all. The Court noted that the waiver language in the agreement tracked the statutory language in the Premarital Agreement Act. In re Marriage of Solano, 2019 IL App (2d) 180011.2.Failure of attorney to not attach engagement agreement to final fee petition not fatal to court hearing petition. Former counsel for husband filed a final fee petition seeking approximately $30,000 in final fees after the entry of judgment. The firm neglected to attach the engagement agreement to the petition, but did so in the reply brief after former client requested the court deny the petition for failure to attach the agreement pursuant to 508(c)(2). The trial court proceeded to hearing and awarded the firm the fees owed. The Appellate Court affirmed. The petition was essentially amended when the engagement agreement was added an exhibit to the reply. Further, the amendment could not have prejudiced or surprised the former client because he was a party to the agreement. The Court also upheld the firm’s award of fees despite the former client’s argument that the engagement agreement provided that the $2,500 retainer could only be exceeded by further written agreement. Because the firm had received numerous interim fee awards during the proceedings and the former client agreed with those fee awards, that was sufficient to satisfy the provision in the agreement. In re Marriage of Keaton, 2019 IL App (2d) 180285.3.Petition to modify child support denied under income shares statute. Father sought to reduce his child support on two grounds: (1) because mother was now working and had employment income and (2) because his income had decreased. The trial court granted mother’s motion for a directed finding and denied the petition for modification. Father only appealed the issue of whether mother’s new employment income was a substantial change of circumstances. The Appellate Court affirmed. The language of the parties’ MSA contemplated that mother may return to work one day, and therefore when she did, the parties did not intend for her income to trigger a downward modification of support. In support of its ruling, the Court relied on three specific provisions in the divorce documents: (1) the health insurance provision in the MSA which provided either party’s employer could one day cover the children; (2) a provision in the JPA which required the parties to keep each other apprised of their places of employment; and (3) a parenting time provision dealing with work related cancellations. The Court also stated it would have affirmed even if the language of the MSA and JPA did not contemplate mother’s return to the work force because mother’s new income was so small compared to father’s that it would not have been a substantial change of circumstances. The Court also noted that the language in 501(a) specifically states that the amendment itself is not a substantial change in circumstances and cautioned against maneuvers like the father in this case of using it for such. In re Marriage of Salvatore, 2019 IL App (2d) 180425.4.After trial court granted a motion for directed finding it did not have the ability to further modify the parenting agreement. In a post-judgment matter, father filed a petition to modify the parenting agreement such that he would have the majority of parenting time and sole decision-making responsibilities because of a move to Indianapolis. Mother argued that the move was actually three years prior to the filing of his petition and such a move was contemplated when the parties divorced. Therefore, there was no substantial change of circumstances. Mother moved for a directed finding which was granted “in part” after father rested his case because there was no substantial change of circumstances warranting a change in parenting time or decision-making. However, the court then made certain modifications to the parenting agreement due to the parties’ “propensity for petty and inappropriate behavior.” The modifications related to summer parenting time, videoconferencing, pick-up and drop-off locations, and communication parameters. The Appellate Court affirmed the directed finding, but held that pursuant to Section 5/2-1110 of the Civil Code, once the motion for directed finding was granted, the court should have dismissed the action. Furthermore, the court could not have granted the motion in part and still ordered the supplementary relief because the provisions of Section 610.5(e)(1-4) were not present which would have allowed the court to modify the parenting agreement without a substantial change of circumstances. In re Marriage of Burns and Lifferth, 2019 IL App (2d) 180715.

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