Mar 01, 2014

IICLE Family Law Flash Points - March 2014

1. The approach in Illinois for resolving a dispute over the disposition of pre-embryos is to honor the parties’ mutually expressed intent. As a matter of first impression, the Appellate Court dealt with the issue of who controls the disposition of cryopreserved pre-embryos created with one party’s sperm and another party’s ova when the relationship between the parties ends. After an extensive analysis of the approaches employed by other states, the First District chose to employ the “contractual approach” which provides that court will enforce contracts governing the disposition of the pre-embryos as long as they do not violate public policy. However, when there is no advance agreement regarding the disposition of the pre-embryos, then the “balancing approach” should be used where the relative interests of the parties in using or not using the pre-embryos must be weighed. The Court declined to follow the “mutual consent approach” which provides that no embryo should be used by either party, donated to another patient, used in research, or destroyed, without the mutual consent of both parties who created the embryo. The Court noted that Iowa is the only state currently which follows the mutual consent approach. The reason for adopting the contractual approach is that it allows the parties, rather than the courts, to make their own reproductive choices while also providing a measure of certainty necessary to proper family planning. Szafranski v. Dunston, 2013 IL App (1st) 122975.2. Premarital agreement found to be invalid and unenforceable at the time of husband’s death. The husband and wife signed a premarital agreement the day before their marriage which prohibited either from renouncing the will of the other and asserting their statutory inheritance rights upon the other’s death. This was a second marriage for both parties and they did not have children together. After more than 23 years of marriage, husband passed away and wife sought to renounce and take her statutory share of the estate. The trial court held an evidentiary hearing on the husband’s estate’s petition for declaratory judgment, wherein the court was asked to hold the agreement valid and binding. The trial court correctly applied the legal standard set forth in In re the Marriage of Murphy, 359 Ill.App.3d 289 (2005) for agreements executed before Illinois’ adoption of the Premarital Agreement Act which provides that to be valid and enforceable, the agreement, among other things, had to be fair and reasonable. The trial court found the agreement was not fair and reasonable because it did not provide an equitable settlement for wife in lieu of her inheritance rights. The Appellate Court affirmed. Despite issues of whether certain arguments might have been waived on appeal, the Court noted that even if it were to consider the merits of the argument, it would still have to uphold the trial court based on the relevant standard of fairness that needed to be applied. Justice Holdridge authored a strong dissent arguing that the trial court erred because it determined the “fairness” of the agreement by comparing the amount of money wife received with the value of husband’s estate, not by determining whether the agreement had been entered into knowingly and voluntarily. In re the Estate of Chaney, 2013 IL App (3d) 120565.3. Illinois Supreme Court holds that the State’s failure to file notice pleading under the Adoption Act did not prejudice mother. In child protection proceedings, the State filed a petition for termination of mother’s parental rights. The trial court found the mother unfit under section 1(D)(m)(iii) of the Adoption Act and the Appellate Court reversed. The plain language of Section 1(D)(m)(iii) of the Adoption Act states that a basis for termination of parental rights is the finding of “unfitness” of a parent who fails to make reasonable progress towards the return of the child to the parent during any 9-month period after the end of the initial 9-month period following the adjudication of neglect and abuse. In 2006, the legislature amended the statute to provide that a petitioner in such a case “shall file and serve with the court and serve on the parties a pleading that specifies the 9-month period or periods relied on.” The State did not follow this procedure but the Supreme Court held that its amended petition was sufficient to state a cause of action to inform the mother as to the nature of the neglect charge because the petition specified the initial 9-month period following the adjudication of neglect and it was apparent from the record that the mother understood exactly what 9-month periods were at issue. Therefore, the State’s failure to file a separate notice was a pleading defect, not a failure to state a cause of action. In re S.L., 2014 IL 115424 (2014).4. Cook County now issuing marriage licenses to same-sex couples. On February 21, 2014, U.S. District Judge Sharon Johnson Coleman issued a ruling which provided that the Cook County Clerk could immediately issue marriage licenses to same-sex couples although the effective date of the same-sex marriage law is not until June 1, 2014. The District Court ruling did not apply to the collar counties of Will, Lake, DuPage, McHenry, and Kane, and they are still bound to follow the June 1, 2014, effective date for the issuance of same-sex marriage licenses.

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