Jan 01, 2016

IICLE Family Law Flash Points - January 2016

1. Ex-wife entitled to enforce provision in judgment dividing ex-husband’s pension after his death but before entry of QDRO. The Appellate Court reversed the trial court’s order dismissing ex-wife’s petition to enforce the judgment with respect to the division of husband’s federal pension because husband died before the entry of the QDRO. Husband had remarried and his new wife claimed she was entitled to 100% of the benefits as a surviving spouse. The new wife had also been joined as a party in the original divorce action by agreement, and therefore was a party to the judgment. Because the judgment was a final judgment when husband died, the action does not abate upon husband’s death, and thus, ex-wife was entitled to enforce the division of the pension as set forth in the judgment. The Second District departed from the First District’s ruling in In re the Marriage of Petraitis, 263 Ill.App.3d 1022 (1993) which held that the absence of a QDRO prevented the judgment from being final. In re the Marriage of Platt, 2015 IL App (2d) 141174.2. Trial court properly found husband had overpaid maintenance to wife in a proceeding to enforce the terms of the judgment. At issue was the language in a judgment which did not specify exactly when husband’s maintenance obligation commenced. The language provided a formula to calculate a percentage amount owed to wife annually. Husband paid the annual amount to wife, and then sought reimbursement for $168,417.50 because the divorce was not finalized until October 2011 and the parties had continued to live their same lifestyle throughout the divorce proceedings. The court found the language ambiguous because it did not specify whether the 2011 payment was to be pro-rated. After hearing testimony, the court found that the maintenance obligation was not intended to commence until the entry of judgment. In re the Marriage of Figliulo, 2015 IL App (1st) 140290.3. Trial court reversed on denial of a plenary order of protection. After entering an emergency order of protection and extending such order, the trial court denied a plenary order of protection despite the uncontroverted evidence that wife put on regarding husband’s historical violent behavior and a specific incident wherein he used “pressure point tactics” on her thumb to cause her a great deal of pain and shoved her into a cabinet causing bruising. Husband was a former military policeman in the Navy. The Appellate Court held the trial court’s findings that the facts in evidence were nothing other than husband “being a bad husband” and that these instances did not rise to the level of intimidation or threats, was against the manifest weight of the evidence. In its holding the Court not only relief on prior case law, but also reiterated the Domestic Violence Act is to be broadly construed. Carolyn Anne H. v. Robert H., 2015 IL App (2d) 150409.4. Trial court upheld on finding of business as non-marital property when shares were gifted to husband prior to the marriage and he was adequately compensated for his services during the marriage. Husband was gifted 33.08% shares of ownership in a family-owned mobile home park. Husband managed the park as part of his duties working as a civil engineer for a related company. The park was sold for $4 million during the marriage and the net proceeds were deposited into two accounts in the name of the corporation. At the time of trial, husband’s interest in the corporate accounts was $768,359 and his personal investment account held $472,670. The trial court awarded husband his interest in the corporate accounts as his non-marital property and the Appellate Court upheld. Even though wife was listed on the corporate investment accounts for a few months, this did not mean the accounts were transmuted to marital property. Husband did little during the marriage to expand the business and was fully compensated for any work he did perform. There was no evidence that any marital funds were ever deposited into the corporate accounts. Finally, while the parties benefitted from non-marital cash by way of corporate distributions to pay living expenses, that does not mean that such distributions were transmuted into marital property. In re the Marriage of Veile, 2015 IL App (5th) 130499.5. Five year maintenance award in the amount of $650 per month reversed in favor of a permanent maintenance award in an amount sufficient for wife to attempt to maintain her lifestyle. The trial court awarded wife $650 per month, with a possible termination date in 5 years, after 28 years of marriage. The Appellate Court reversed. Wife was 57 and husband was 58, but wife only had a high school education and husband was an engineer. Husband received $1.2 million in assets and wife received $200,000 in assets under the judgment. The Court held that the award – both in amount and duration – did not appear to reflect a realistic considering of the factors set forth in Section 504 of the IMDMA and that wife should have been awarded permanent maintenance. The Court noted that during the marriage the parties lived a lavish debt-free lifestyle and that wife should have been award maintenance in an amount that would have allowed her to attempt to maintain the lifestyle she was accustomed to during the marriage. In re the Marriage of Veile, 2015 IL App (5th) 130499.

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