Aug 01, 2017

IICLE Family Law Flash Points, August 2017

1. House husband acquired with girlfriend during marriage deemed marital property.During the course of the parties’ marriage, husband acquired a 50% interest in a residence with his girlfriend with the down payment for the property coming exclusively from the girlfriend’s 401(k).Husband and girlfriend also had a joint checking account where each of their paychecks were deposited and from which they paid their household bills, including the mortgage. There was also an arrangement that when the house was sold, the girlfriend would receive her down payment back and they would split any remaining proceeds 50/50.The trial court found the property to be marital property and husband appealed.The Appellate Court affirmed holding that it was undisputed that the property was acquired during the marriage, and therefore presumptively marital property.Husband could not prove by clear and convincing evidence that he acquired the property by one of the means specified in Section 503(a) of the IMDMA.Specifically, the facts supported the trial court’s finding that the money provided by the girlfriend for the down payment was not intended to be a gift to husband because she did not absolutely and irrevocably relinquish future power over the property.Additionally, neither husband or the girlfriend testified that the property was a gift to husband. Husband also appealed the trial court’s decision to award wife 50% of husband’s equity in the house.The Appellate Court also affirmed on this point noting that the court did not abuse its discretion in this award considering the marriage was 22 years and wife had significant health issues. In re the Marriage of Brill, 2017 IL App (2d) 160604.2. Trial court reversed for failure to apply 40% cap on combined income pursuant to Section 504(b-1)(1)(A).In a divorce case where husband earned $91,000 per year and wife earned $26,000 per year, the trial court subtracted 20% of wife’s gross income from 30% of husband’s gross income to arrive at the ordered maintenance amount ($22,080 per year or $1,840 per month).However, when wife’s maintenance award was added to her gross employment income, her gross income exceeded 40% of the parties’ combined gross incomes.Section 504(b-1)(1)(A) provides that the calculated maintenance when added to the gross income of the payee may not result in the payee receiving an amount that is in excess of 40% of the combined gross income of the parties. The failure of the court to cap the maintenance award was in error as the calculation should have been reduced to comply with Section 504(b-1)(1)(A).Additionally, the Court noted the trial court made no findings as to any reason for a deviation, which it could have done. The Court also upheld the trial court’s decision to not include in wife’s income loans she received from her parents since the parties’ separation even though the vast majority of the loans were not in writing.The funds were used to help wife meeting her living expenses. The Court relied on the case of In re Marriage of Tegleler, 365 IllApp.3d 448,458 (2006) which stated that in general loans should not be considered income because they usually do not directly increase an individual’s wealth. In re the Marriage of Brill, 2017 IL App (2d) 160604.3. Termination of maintenance reversed.After wife’s maintenance had been extended twice after two separate reviews, husband then petitioned to terminate due to his pending retirement. The trial court granted his petition and terminated wife’s maintenance. Wife appealed and the Second District reversed.Wife had originally been granted $4,150 per month in unallocated support with a review after 3 years.At the review, wife’s income as a nurse was $28,000 and husband’s income was as high as $383,000 in one particular year.The court increased the unallocated support to $6,000 per month reviewable in 5 years.At the time of the second review, the trial court ordered permanent maintenance at $3,600 per month. At the time, wife was earning $42,000 and had minimal assets while husband’s average salary was $225,000 and he had substantial investment assets and real estate. The trial court found that the goal of wife becoming financially independent in order to maintain the standard of living enjoyed during the marriage was not attainable. In 2014, eight years later, husband petitioned to terminate maintenance alleging his salary had decreased and he wished to retire within the year. The trial court granted his petition finding that wife had failed to make reasonable efforts to become financially self-sufficient and failed to obtain further education or training to advance her career.The Appellate Court reversed noting that the trial court gave no deference to the prior court’s ruling awarding wife permanent maintenance and the Appellate Court’s affirmation of that award.The Court acknowledged that permanent maintenance could be terminated upon a substantial change in circumstances, but the evidence did not reasonably demonstrate a substantial change in circumstances because when the trial court awarded permanent maintenance, both parties were in their mid-fifties and retirement was directly at issue and was contemplated when the permanent maintenance was awarded.Furthermore, husband had sufficient assets to continue to satisfy his maintenance obligations. In re the Marriage of Bernay, 2017 IL App (2d) 160583.4. For calculating maintenance pursuant to Section 504 of the IMDMA, gross income includes income from all sources, including family gifts.The trial court was reversed when it calculated wife’s income and excluded over $13,000 in annual gifts wife received from her father which were not included on her tax return or her W-2, although sometimes payment came through the family business she worked for and sometimes from her father directly.The plain language of 750 ILCS 5/504(b-3) provides that income shall include income from all sources within the scope of Section 505 (the child support statute).Under the case of In re the Marriage of Rogers, 213 Ill.2d, 129 (2004), gifts one receives from family is includable as income for the calculation of child support.Therefore, this definition now extends to maintenance as well. The trial court remanded for the court to recalculate the amount of maintenance wife would owe husband based on the new amount of her income In re the Marriage of Ruvola, 2017 IL App (2d) 160737.

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