Aug 01, 2015

IICLE Family Law Flash Points - August 2015

1. New Illinois Marriage and Dissolution of Marriage Act and Parentage Act to take effect January 1, 2016. Governor Rauner has signed Senate Bill 57 (rewrite of IMDMA) and House Bill 1531 (rewrite of Parentage Act) and the new statutes will take effect January 1, 2016. Links to both new statutes are provided below. This is the first comprehensive re-write of the IMDMA since 1977 and the Parentage Act since 1984. While there are significant changes to both statutes, some of the significant highlights are as follows:There is one ground for dissolution of marriage – irreconcilable differences.A court will no longer award custody or visitation, but rather allocate parental responsibilities and parenting time.Parental responsibilities are broken into categories such as education, health, religion and extra-curricular activities and the court can allocate the specific responsibilities either jointly or solely to one parent.Parents who reside in Cook, DuPage, Kane, Lake, McHenry and Will counties may move up to 25 miles from his or her current residence without leave of court. A parent in any other county may move up to 50 miles without leave of court. Parents can move up to 25 miles across state lines without leave of court.Courts must issue judgments after trials on dissolution of marriages no later than 60 days after the close of roofs.Courts will have discretion to use one of several different dates to determine the value of assets at a dissolution of marriage trial.College education expenses under Section 513 are capped at what is charged at the University of Illinois at Champaign-Urbana unless good cause is shown.This list is not exhaustive of the comprehensive re-write and is intended only to illustrate a limited selection of the new amendments.2. Vague and general testimony that marital assets were used for marital expenses not enough to meet the burden to overcome a dissipation claim. Husband moved for a claim of dissipation against wife due to the fact that under a temporary order wife collected all the business income from a family-owned business, rental income from investment property, and was responsible for paying the mortgages on both properties. Despite the fact that both properties’ monthly rental proceeds exceeded the monthly mortgage payments, both properties went into foreclosure. Wife admitted that she did not pay the mortgages but only gave vague, general testimony that marital assets were used to pay marital expenses. Because wife failed to pay the mortgages resulting in all the property being lost to foreclosure, the marital estate was diminished. Because wife caused this diminution, she had the burden to show clear and specific evidence how the funds were spent and she did not. In re the Marriage of Brown, 2015 IL App (5th) 1400623. Seventh Circuit upholds District Court’s ruling that evidence of sexual abuse falls within the ‘grave risk’ exception to the Hague Convention’s mandatory return rule. Defendant mother, who was a Mexican-citizen, wrongfully removed two minor children from Mexico and Plaintiff father sought their return. However, the District Court found that although the children were wrongfully removed, clear evidence of daughter’s sexual abuse by father fell under the ‘grave risk’ exception to the Hague Convention’s mandatory rule which requires a child be returned to his or her country of habitual residence. The Appellate Court upheld the ruling noting that the mother, daughter, and court-appointed psychologist’s testimony all supported a finding of sexual abuse and that the evidence of sexual abuse was substantial and sufficient to meet the clear and convincing standard. Ortiz v. Martinez, 2015 WL 3650649. 4. UCCJEA home state jurisdiction does not exist until birth of child. In a Parentage action, father filed a claim for paternity, custody and visitation in Illinois prior to the birth of the minor child. Mother was residing in Colorado at the time he filed his petition and mother thereafter filed a competing petition in Colorado. The Illinois trial court denied mother’s motion to dismiss the custody portion of father’s petition utilizing the significant-connection analysis under Section 201(a(2) of the UCCJEA. The Appellate Court reversed. The home state determination of a child must be deferred until the child’s birth and the birth state will ultimately become the home state of the child. UCCJEA jurisdiction does not exist prior to a child’s birth. In this case, Colorado had proper jurisdiction over the custody of the child because during the case the child was born there. Fleckles v. Diamond, 2015 IL App (2d) 141229.5. Husband’s concealment of three previous marriages to current wife did not amount to fraud, requiring annulment of marriage. Wife was not entitled to an annulment after she discovered that husband had not disclosed three prior marriages to her. Husband was still married when the couple participated in a religious ceremony in Atlanta. The ceremony was held without a marriage license because husband had told wife they could not obtain a marriage license because he had left his identification documents in Dallas. At the time of the ceremony husband was still married to his prior wife. He subsequently divorced, unbeknownst to the wife in this case, and the couple later married with a proper marriage license. Wife discovered the prior marriages after attending an immigration interview with husband and filed a petition for annulment. The trial court granted the annulment but the Appellate Court reversed holding that the fraud necessary to annul a marriage must be such as to go to the very essence of the marriage contract. The Court also relied on other jurisdictions which have held that concealment of a prior marriage which has been dissolved by death or divorce does not amount to fraud. The Court reversed and remanded for the case to proceed on husband’s counter-petition for divorce. In re the Marriage of Igene, 2015 IL App (1st) 140344.

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