Aug 01, 2013

IICLE Family Law Flash Points - August 2013

1. Minor child’s habitual residence was Illinois for purposes of the Hague Convention. In addressing a case of first impression, the Seventh Circuit Court of Appeals held that the mother did not wrongfully “retain” the minor child in the U.S. in violation of the Hague Convention when she failed to abide by an Irish court’s guardianship and custody order requiring her to return to Ireland with the child. The last known “agreement” between the parties that their son should be raised in Ireland was when the child was 11 days old. The evidence showed that the child had spent all but brief periods of his life in Illinois and had an established home there. The Court also stated that the mother had not violated the Hague Convention when she decided unilaterally to return to Illinois with the child because under Irish law, the father had no parental rights because the child was born out of wedlock. Redmond v. Redmond, 2013 WL 3821595.2. Children do not have standing to intervene in their parents’ divorce case for purposes of protecting their interests under Section 513 of the IMDMA. Two emancipated sons sought to intervene in their parents’ divorce action in order to attempt to secure funds for their college education. The trial court denied their motion to intervene and the Appellate Court affirmed. Section 513 of the IMDMA is entirely discretionary and the IMDMA does not mandate that divorced parents must provide their children with funds for a college education. The Appellate Court upheld the existing case law which states that the statute creates no right in a child to directly petition the court for benefits which are potentially available under its provisions. The Court noted that the mother had a petition on file for the father to contribute to the children’s post-high school education expenses and therefore the children’s interests were adequately represented. The Court distinguished this case from a case where a child has a right to enforce the provisions of a Marital Settlement Agreement wherein the parties had specifically contracted regarding the payments relating to a child’s college education. In re the Marriage of Vondra, 2013 IL App (1st) 123025.3. Surviving spouse benefit of husband’s disability pension is not marital property under the IMDMA. Husband was a retired teacher for the Chicago Public Schools (CPS) and had been receiving pension benefits during the marriage. The parties divorced in 2005 and ex-wife received the entire marital portion of this pension. She also argued that the surviving spouse benefit of the CPS pension should be awarded to her as marital property. The trial court denied her request, which the Appellate Court affirmed. Section 17-121(a) of the Pension Code states that a surviving spouse shall be entitled to a survivor’s pension only if the surviving spouse was married to the teacher for at least one year immediately prior to the teacher’s death. Because the ex-wife was no longer married to the teacher, she was excluded as a “surviving spouse.” Although all pension benefits acquired during the marriage are generally presumed to be marital property under the IMDMA, the presumption is overcome in this case because the benefits at issue did not belong to either spouse during the marriage. Rather, pursuant to the Pension Code, the survivor benefits belong to a hypothetical and undetermined surviving spouse defined by the statute and to be determined at the time of the husband’s death. In re the Marriage of Winter, 2013 IL App (1st) 112836.4. Maintenance award on husband’s base income plus 20% of bonus income up to $100,000 affirmed. After a trial on the issue of the determination of a maintenance award in connection with the entry of a judgment for dissolution of marriage, the trial court ordered husband to pay $6,100 per month to wife in reviewable maintenance. The award also included a graduated percentage of husband’s bonus (50% up to $50,000; 20% between $50,001 and $100,000). Husband’s gross monthly income was $29,500 and wife earned $11 per hour working at a nursing home. The trial court also ordered wife to pay the remaining balance of her attorneys’ fees of $6,552.88 based upon the assets she received in the property distribution. Wife appealed claiming that she should have received a greater percentage of husband’s future bonuses. The Appellate Court affirmed the trial court’s ruling noting that the record demonstrated that wife’s expenses of $6,400 per month are met with her maintenance award of $6,100 per month plus her own employment income. Wife also received marital property and accounts valued in excess of $200,000 which enabled her to pay her own attorneys’ fees. In re the Marriage of Dowd, 2013 Il App (3d) 120140.5. Injunctive relief proper where child support obligor sought modification of a judicial support order in an administrative court. The trial court determined that a child support obligor was $21,189 in arrears pursuant to a judgment for dissolution of marriage. The Department of Healthcare and Family Services (HFS) sent the obligor notice of its intent to collect the past due support and advised the obligor of his right to appeal by requesting a hearing with HFS. Thereafter, the trial court properly entered an injunction prohibiting the obligor from seeking to modify its court order before any administrative agency. The modification of a child support obligation is exclusively a judicial function and a parent must petition the court and obtain judicial approval of any changes. The child support recipient adequately met all requirements for an injunction and the trial court properly denied the obligor’s request for a bond. In re the Marriage of Sheaffer, 2013 IL App (2d) 121049.

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