Jan 02, 2018

IICLE Family Law Flash Points, January 2018

1. Modification of parenting time granted, essentially denying relocation.Mother appealed from a trial court order modifying parenting time which changed the parenting schedule from her having the majority of the parenting time to father having the majority.Father filed the motion for modification after mother moved the children 324 miles from their original residence and failed to give notice to father regarding the relocation pursuant to Section 609.2 of the IMDMA.At the hearing, mother testified that the move from Palatine to Belleville, near St. Louis, was due to her current job no longer being available in the Chicagoland area and because she had found employment in St. Louis.She gave father notice of the move three days prior to the move.The evidence also showed that mother’s boyfriend had secured employment in Belleville and the couple had secured a lease approximately six weeks prior to the move. Mother never filed a petition to relocate during the proceedings.Father objected to the move on the basis that it would adversely impact his parenting time. After a hearing, the trial court modified the parenting time such that father was granted a majority of the parenting time with the minor children.The Appellate Court affirmed and noted that the trial court’s ruling essentially provided that the court engaged in a 609.2 analysis and ruled that had mother filed a petition to relocate, it would have been denied. The move was not in the best interest of the children.Educational opportunities were equal in both locations, father had significant parenting time (3 out of 7 nights per week), the children had a close relationship with father’s extended family and none of the mother’s in the new location, and the relationship with their father was more important the relocation. In re the Marriage of Adams, 2017 IL App (3d) 170472.2. Relocation notice provision applicable to judgments entered prior to 2016 amendments.In a contested matter involving a petition for modification in parenting time, mother failed to give notice of her proposed relocation pursuant to Section 609 of the IMDMA which requires a parent who has the majority of parenting time to file a petition with the court seeking permission to relocate if the non-relocating parent objects to the relocation.The move in question in this matter was 324 miles away from the minor children’s original residence in the Chicagoland area to the Belleville, Illinois area.Father filed a motion to modify the parenting schedule seeking to be granted the majority of the parenting time when he learned of the move.Mother failed to ever file a Petition for Relocation during the proceedings. She argued that the amended statute did not apply because it was not the law at the time the parties’ Joint Parenting Agreement was entered.The Appellate Court held that the amended relocation statute applied because the law was in effect January 1, 2016 and mother relocated in 2016, father’s petition challenging the relocation was filed in 2016, and the final hearing was not until 2017.The Court further stated that to the extent mother was not aware of the new statute, she should have been aware of it when father filed his petition to modify parenting time. In re the Marriage of Adams, 2017 IL App (3d) 170472.3. Allocation of child dependency exemption reversed. In a post-judgment matter, father sought modification of the parties’ Joint Parenting Agreement (JPA) which provided mother with the allocation of both child dependency exemptions so that he could claim the children beginning in the year 2014 (taxes filed in 2015).The issue centered on the language of a heavily negotiated agreed order which resolved not only the dependency exemptions, but also mother’s pending petition to modify child support.The trial court ruled that the following language: “Adam shall claim the children annually on his income tax returns” meant that he would be allowed to claim them prospectively, which at the time were the 2015 returns, filed in 2016.Father appealed and the Appellate Court reversed holding that there was no ambiguity in the terms of the final agreed order entered on November 25, 2015 which modified both the child support and the dependency exemption.Considering all of the facts and circumstances surrounding the entry of the order, it was clear that the parties intended for the agreed order to allow father to claim the tax exemptions for the children for the 2015 tax year on the returns filed in 2016. In re the Marriage of Watkins, 2017 IL App (3d) 160645.4. New tax law eliminates maintenance deduction beginning in 2019.There has been much discussion concerning the new tax law and how it will affect families, individuals and businesses.Changes have been made to both the individual and corporate tax rates, the amount of the standard deduction, the child tax credit and the mortgage interest and property tax deductions.But most significant for divorce practitioners is the elimination of the tax deduction for maintenance payments.Currently, maintenance payments are deductible by the payor and taxable to the payee.Under the new law, the maintenance payments will not be deductible by the payor and taxable to the payee.Also, this change in the tax law may not apply to judgments entered before the effective date of this provision which is January 1, 2019. A complete copy of the tax legislation (H.R.1) can be found here: View Source

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