Jul 01, 2015

IICLE Family Law Flash Points - July 2015

1. United States Supreme Court legalizes same-sex marriages nationwide. In a 5-4 decision, the U.S. Supreme Court held that the Fourteenth Amendment of the Constitution requires individual states to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage is lawfully performed in another state. Fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. The Court relied on precedent that invalidated bans on interracial marriages and denying prisoners the right to marry in its ruling. Additionally, the right of same-sex couples to marry is also derived from the Fourteenth Amendment’s guarantee of equal protection. Justice Kennedy authored the Court’s opinion and was joined by Justices Ginsburg, Breyer, Sotomayor and Kagan. Chief Justice Roberts and Justices Scalia, Thomas, and Alito all filed individual dissenting opinions. Obergefell v. Hodges, 576 U.S. ______ (2015).2. Illinois Supreme Court holds social security benefits are not marital property subject to consideration or division in a divorce case. At trial, the court declined to decrease the value of the husband’s municipal pension by the hypothetical value of the social security benefits that he would be entitled to receive had he contributed to social security. Husband’s expert presented testimony regarding the value of his government pension plan and used a “Windfall Elimination Provision” (WEP) wherein she calculated what husband’s social security benefit would be had he participated in that program rather than a government pension. The trial court ultimately valued the pension without the WEP and awarded wife approximately 35% of the total value of the pension. Husband appealed and the Appellate Court affirmed. The Supreme Court held that participants in the Social Security program do not have accrued property rights to their benefits, but rather expectancies or “noncontractual interests” in their benefits. Unlike pension benefits, social security benefits are not owned in the proprietary sense. Because social security benefits are not “acquired” by a spouse, then they are not marital property subject to consideration or division by a trial court. As a result, if they are not marital property, then hypothetical benefits, are not marital property and cannot be used to decrease the value of marital property available for division. In re the Marriage of Mueller, 2015 IL 117876. The case effectively nullifies any precedent including the Third District case of In re the Marriage of Roberts, 2015 IL App (3rd) 140263 decided weeks prior to this decision.3. Ex-husband’s disability benefits received in lieu of retirement benefits could reasonably be considered part of his retirement plan in which ex-wife should share. Post-divorce, Husband was injured at his job and began receiving disability benefits, although he was eligible to receive retirement benefits at that time. Wife filed a petition with the trial court in order to receive half of the benefits because she was entitled to one-half of his retirement plan under the judgment. Because the husband was eligible to retire and receive retirement benefits, but rather chose to receive disability, these benefits were essentially retirement. The payments did not serve as income replacement, but as a substitute for his retirement pension. The trial court ordered him to pay his ex-wife directly since the division of disability benefits could not be accomplished by a QILDRO and the Appellate Court affirmed. In re the Marriage of Benson, 2015 IL App (4th) 140682.4. First District awards custody of pre-embryos created by two unmarried persons to the egg donor despite the sperm donor’s objection to the future use of them without his consent. In a case of first impression, the First District held that the Plaintiff, Jacob Szafranski, and the Respondent, Karla Dunston, entered into an oral contract where they agreed to create pre-embryos that Karla could use to have a biological child in the future, and that the parties did not modify this contract when they executed the medical informed consent presented to them by the doctor performing the IVF procedure. The Court further held that Karla’s interests in having the opportunity to have a biological child outweighed Jacob’s interests because the pre-embryos were Karla’s only chance to have a biological child due to her diagnosis with lymphoma. The trial court heard testimony from both of the parties, the physician, and an adoption and reproductive technology lawyer who had met with the parties prior to the procedure taking place. The evidence also included the details of the parties’ communications leading up to the decision by Jacob to donate his sperm and the reasons Karla underwent the procedure, including the fact that she was told by her doctor that she would not be able to have a biological child after chemotherapy. The Appellate Court affirmed the trial court’s decision that the parties intended to allow Karla to use the pre-embryos without limitation when they formed their oral contract and further held that the medical informed consent neither modified nor contradicted the parties’ oral contract. Therefore, Karla was awarded custody of the pre-embryos. It is our understanding that Plaintiff will seek leave to appeal the Illinois Supreme Court. Szafranski v. Dunston, 2015 IL App (1st) 122975.5. Trial court erred in determining husband consented to personal jurisdiction of Illinois under the Federal Uniformed Services Former Spouses’ Protection Act (FUSFSPA). In a post judgment action, the trial court found that it had personal jurisdiction over husband involving the enforcement of a Michigan judgment dividing a military pension due to sufficient minimum contacts he had with Illinois. Husband had registered a vehicle using an Illinois address and his retiree account statements listed an Illinois address. Husband filed a motion to vacate on the grounds that Illinois did not have personal jurisdiction over him under FUSFSPA. The Appellate Court held that FUSFSPA applied to this action because ultimately the trial court modified, not just enforced, the Michigan’s court order when it ordered wife to receive 20% of the disposable retirement pay, rather than 25% of the marital portion which was ordered in the judgment. Because Illinois’ long arm statute conflicts with the more constrictive jurisdictional provisions of FUSFSPA, federal law preempts state law where there is a conflict. The case was reversed and remanded for the trial court to have a hearing under section 1408(c)(4) of FUSFPA to determine whether husband maintained a residence or domicile in Illinois which would result in Illinois having personal jurisdiction over him. In re the Marriage of Robinson and Willis, 2015 IL App (1st) 132345.6. Appellate court reversed trial court’s finding of cohabitation for purposes of terminating maintenance. Ex-husband petitioned to terminate maintenance on the grounds that his ex-wife was cohabitating with her boyfriend. After extensive evidence was admitted regarding the details of ex-wife’s relationship with her then-boyfriend, the trial court found that she was cohabitating on a resident, continuing and conjugal basis. However, the Appellate Court reversed and focused its analysis on whether the relationship was a de facto marriage. Although she was clearly in an intimate dating relationship, she was not in a de facto marriage. The Court focused on whether there was any intended permanence and/or mutual commitment to the relationship. While the evidence clearly showed companionship and exclusive intimacy, there was no evidence supporting a conclusion that there was ever an intention to make the arrangement permanent. While they vacationed together it was often in group settings; they did not commingle their finances; they did not spend the night at each other’s home during the week; and the relationship had ceased by the time the matter went to trial. In re the Marriage of Miller, 2015 IL App (2nd) 140530.7. Social media posts were not offered to show the truth of the matter asserted, and thus, were not inadmissible hearsay. In a proceeding to terminate maintenance based on cohabitation, ex-husband attempted to introduce various Facebook postings made by his ex-wife and her boyfriend. Ex-wife objected on the grounds of hearsay and ex-husband argued that he was not offering the posts for the truth of the matter asserted, but rather to show the manner in which his ex-wife and her boyfriend presented themselves as a couple through posts and pictures of their vacations, golf outings, and family gatherings. The trial court admitted the postings and the Appellate Court affirmed that such posts were not hearsay. The Court also upheld the use of such posts for impeachment purposes and affirmed the foundation that was laid for them. In re the Marriage of Miller, 2015 IL App (2nd) 140530.8. Trial court upheld on the replenishment of a 503(g) Trust. In a post-judgment action, wife sought replenishment of a 503(g) Trust established by the parties’ settlement agreement and to set husband’s child support based on his new income. After several days of testimony, the trial court ordered husband to replenish the trust at a rate of $12,000 per year. Husband appealed and the trial court was affirmed. Because the agreement established the trust and named wife as the trustee, husband could not now claim that she was an improper trustee because she was an “interested party.” It was proper to order the replenishment of the trust because of husband’s past refusal to pay for the children’s expenses which caused wife to have to chase him and engaged in lengthy accounting exercises. In re the Marriage of Pasquesi, 2015 IL App (1st) 133926.9. Reimbursement for college expenses incurred prior to the date of the filing of the petition for contribution allowed if settlement agreement contemplates the parties will pay for higher education. In a permissive interlocutory appeal, the First District answered the following question: Does the holding in Peterson (2011 IL 110984) preclude the court from ordering a parent to reimburse the other parent for college expenses allegedly paid prior to the date the petition is filed, whenever the parties’ Judgment for Dissolution of Marriage does not order a specific dollar amount or percentage to be paid but leaves the amount to be determined at a later date? The Court answered No and held that the language of the agreement, unlike that in Peterson, expressly obligated the parties to pay for a trade school, vocational school, college or university education, which is distinguishable from an agreement where there is a complete reservation of the issue. In re the Marriage of Donnelly, 2015 IL App (1st) 142619.

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