Jul 16, 2023

IICLE Family Law Flash Points - July 2023

Petition To Terminate Maintenance Based on Cohabitation Denied in “Close Call” DecisionIn a postjudgment action, the husband, who was ordered to pay maintenance for 20 years, filed a petition to terminate maintenance on the basis that the wife was cohabitating with her boyfriend.In re Marriage of Edson,2023 IL App (1st) 230236. After a lengthy evidentiary hearing involving several witnesses, the trial court denied the husband’s petition as a “close call.” 2023 IL App (1st) 230236 at ¶165. The trial court found that the husband had established that the wife was in an intimate dating relationship but had failed to establish by a preponderance of the evidence that she was in a de facto marriage. The husband appealed, and the appellate court affirmed. In a lengthy opinion that relied heavily on the facts of the case, the appellate court noted thatIn re Marriage of Herrin,262 Ill.App.3d 573, 634 N.E.2d 1168, 199 Ill.Dec. 814 (4th Dist. 1994), has been cited throughout Illinois for its non-exhaustive list of factors that the appellate courts have used to determine whether a party is in a de facto marriage. The court cautioned that the Illinois Supreme Court has not adopted theHerrinfactors as the appropriate factors to consider and that this list was never intended to be the only set of factors used in an analysis. The appellate court engaged in a lengthy analysis of theHerrinfactors but noted that the denial of the husband’s petition rested on the fact that based on the totality of the circumstances, the relationship was an intimate dating relationship only. The relationship lacked certain practical and economic characteristics such as commingled finances and a singular mutual household. The wife’s boyfriend had maintained a rental home for approximately ten years, one that he had well before the dating relationship began. The wife continued to maintain her own household and was responsible for paying all of the bills associated with that household. The couple did not share any bank accounts or credit cards, and their life insurance policies listed their respective children as beneficiaries, not each other. While the couple had a long-term dating relationship in which they traveled together and spent holidays together and were often around each other’s children, they were not contemplating marriage, did not have a joint residence, and did not commingle finances.Trial Court Properly Granted Wife’s Motion To Dismiss Husband’s Petition To Invalidate MarriageInIn re Marriage of Andrew,2023 IL App (1st) 221039, the parties were divorced after 20 years of marriage and the husband was ordered to pay to the wife maintenance at $20,000 per month by the parties’ marital settlement agreement (MSA). Six years after the entry of judgment, the wife brought a petition for rule to show cause when the husband stopped making the required maintenance payments to her. The husband filed a petition to invalidate the marriage, alleging that his relationship with his former wife began when he was 16 years old; that the wife was a high school teacher and advisor of his; and that she used her position to “take dominance and control” over him to sexually assault him on an almost weekly basis when he was a minor. 2023 IL App (1st) 221039 at ¶6. He further alleged that when he turned 25 the parties married at her insistence and that due to her dominance and control over him, the marriage should be invalidated. In his request for relief, the husband demanded the wife disgorge any and all monies and property she received from him under the MSA. The wife filed a motion to dismiss the husband’s petition, which the court granted. The husband filed an amended petition, which the trial court also dismissed. Thereafter, the court denied a motion to reconsider filed by the husband. The husband then filed a motion to terminate maintenance alleging that he had a therapeutic breakthrough in 2020, which was a substantial change in circumstances. The appellate court affirmed the dismissal of the husband’s petition to invalidate the marriage. The facts contained in the judgment directly contradicted his petition, namely, that he was under the wife’s “dominance and control.” 2023 IL App (1st) 221039 at ¶40. He was a successful professional who filed a petition for divorce, participated in negotiations while represented by counsel, and entered into an MSA that provided he was acting of his own free will and without duress. He also did not plead any facts that showed specifically how the wife’s “dominance and control” could have persisted beyond the entry of judgment. 2023 IL App (1st) 221039 at ¶42. He made no allegations of a mental health diagnosis, repressed memories, or even how such dominance and control manifested itself in his life. The court noted that this opinion does not answer the question whether a verified history of sexual misconduct or grooming might be a sufficient reason to invalidate a marriage under §301 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101,et seq.,under a different set of circumstances.Denial of Motion To Terminate Maintenance UpheldInAndrew, supra,a procedurally complex postjudgment case, the trial court denied the husband’s motion to terminate maintenance. The husband’s motion to terminate alleged that a therapeutic breakthrough on his part constituted a substantial change in circumstances, which justified termination of his maintenance obligation. He listed no other substantial change of circumstances in his petition. The MSA provided that the maintenance was nonmodifiable as to amount and duration with the exception of six events: 180 months of payments; either party’s death; the wife’s remarriage or entry into a civil union; or the wife’s cohabitation. The husband’s primary counterargument on appeal that he was under the wife’s “dominance and control,” thereby making the MSA invalid, was without merit. 2023 IL App (1st) 221039 at ¶53. The MSA itself did not provide for modification upon any substantial change of circumstances other than the specific provisions listed therein. Further, the husband did not seek to invalidate the MSA as a remedy to his petition to terminate maintenance, and therefore he waived this argument on appeal.Trial Court Correctly Denied Admittance of Proffered Testimony at Indirect Civil Contempt HearingAlso inAndrew, supra,at a hearing on the wife’s petition for rule to show cause for failure to make maintenance payments, the trial court excluded testimony offered by the husband in defense of his failure to make the maintenance payments as required under the MSA. The husband made an offer of proof regarding certain testimony as to why he stopped making the maintenance payments, which consisted of the following facts: he did not understand that he had been sexually assaulted when he and the wife first had intercourse and still did not understand that years later when he filed for divorce; when he read the recent indictment of Ghislaine Maxwell, it triggered him to stop paying maintenance in his own case; and his therapeutic breakthrough in September 2020 helped him realize that the wife had “groomed” him. 2023 IL App (1st) 221039 at ¶29. The trial court did not admit the aforementioned testimony into evidence and found that he had no justifiable reason to not have made the maintenance payments and held him in indirect civil contempt. The appellate court upheld. The only issue before the trial court at the hearing for indirect civil contempt was whether the husband had shown good cause as to why he did not pay the maintenance, because he did not dispute that he had withheld payments starting in 2020. The proffered testimony would not have made a fact at issue more or less likely true, and it was therefore properly excluded.

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