Dec 01, 2013

IICLE Family Law Flash Points - December 2013

1. Trial court reversed for not considering husband’s nontaxable social security payments when setting permanent maintenance. Husband, a permanent maintenance recipient, who suffered from multiple sclerosis and clinical depression received a $1,600 per month permanent maintenance award after a dissolution of marriage trial. Wife appealed the award. The record showed that when setting maintenance the trial court considered only the taxable portion of the social security disability payments along with Husband’s pension and annuity when making a finding regarding his income. The Appellate Court held the omission of nontaxable benefits was significant and an abuse of discretion. When the full amount of the payments (both taxable and nontaxable) was combined with his pensions and annuity income, the actual money available to him annually was $42,510, not $20,685. The Court opined it was important for the trial court to consider the actual monetary value of the social security payments available to Husband to meet his living expenses when determining the appropriate maintenance award because a person with $42,510 was in a superior financial position than a person with $20,685 available to him. In re the Marriage of Dea, 2013 IL App (1st) 122213.2. Maintenance award reversed because monthly amount exceeded what recipient needed to meet expenses and what the payor had available to pay. Wife was ordered to pay $1,600 per month in permanent maintenance to husband. In setting the permanent maintenance award, the trial court found that husband’s expenses were $3,800 and his net monthly income was $3,405. Wife’s net monthly income was $4,738 and her monthly expenses without maintenance were $4,459. Wife appealed the award and the Appellate Court reversed. The Court reasoned that while section 504(a) of the IMDMA sets out certain factors as a guide for determining appropriate maintenance, the court must also be guided by reason and reality and that it is sometimes not possible for each of the parties, individually, to maintain exactly the standard of living they enjoyed collectively during the marriage. The Court further stated there was no support in the record to award maintenance above and beyond husband’s needs when the award pushed wife beyond her monthly available income. The matter was remanded to the trial court with instruction to consider all of husband’s income available to him (as reported in Flash Point #1 above) and to compare to his income and expenses with wife’s income and expenses. In re the Marriage of Dea, 2013 IL App (1st) 122213.3. Unconscionable finding of marital settlement agreement upheld. The Appellate Court has upheld a trial court’s finding that a marital settlement agreement entered at a prove-up where husband was represented by counsel and wife appeared pro se was unconscionable. Under the agreement wife received $300,000, some accounts, cars and jewelry with a combined value of $1 million. She also received child support at $2,000 per month and waived off on receiving maintenance. Wife then filed a 2-1401 petition alleging the agreement was unconscionable and procured by coercion and fraud. The court conducted a lengthy evidentiary hearing wherein it heard substantial testimony regarding husband’s annual income (in excess of $1 million), his receipt of substantial shares of stock in Accenture (which were sold during the marriage for $8.65 million), and the acquisition of significant real estate holdings during the marriage. Furthermore, personal financial statements prepared prior to the prove-up indicated husband had a net worth of upwards of $30 million. As a result, the trial court properly found the agreement was substantively unconscionable and the division of assets one-sided in light of the evidence that showed the parties’ disparity in future income and earning potential and the lack of a maintenance award. In re the Marriage of Arjmand, 2013 IL App (2d) 120639.4. Finding of transmutation of non-marital property to marital property upheld. Husband received 441,044 Accenture Founder shares of stock prior to the date of the marriage. During the marriage, husband sold various shares over time and deposited those proceeds into various joint accounts. Funds from the joint accounts were subsequently used to purchase significant real estate holdings during the marriage, the vast majority being held in husband’s sole name and which he claimed was his non-marital property. Husband argued that the accounts could still be considered non-marital if the accounts were used only as a conduit for transfer of the funds but he failed to establish by clear and convincing evidence that this was the case. There was no evidence of intent to keep the assets separate; wife’s name was on most of the business and personal checking accounts; and there was no evidence if any other funds went in and out of those accounts. Additionally, the proceeds from the stock sales were not immediately withdrawn from the account, but sometimes remained for substantial periods of time. Therefore, the trial court’s finding that transmutation was not against the manifest weight of the evidence. In re the Marriage of Arjmand, 2013 IL App (2d) 120639.

News and Insights

Jun 11, 2024

How Prior Planning Prevents Poor Performance

Everyone loves a June wedding! When people ask a couple on the brink of their vows how ...
May 20, 2024

Kimberly Cook Returns to Schiller DuCanto & Fleck To Further Expand The Firm's Footprint in Alternative Dispute Resolution

Schiller, DuCanto & Fleck is excited to welcome home Kimberly A. Cook, who is ...
May 14, 2024

Adam Zebelian Reflects on LAGBAC and Its Role in Advancing LGBTQ+ Rights

Recently, partner Adam Zebelian (president of Chicago’s LGBTQ+ Bar Association), wrote an ...

Looking for a firm that knows Family Law, inside and out? We're ready to listen.