Mar 29, 2023

IICLE Family Law Flash Points - March 2023

Assisted Reproduction Statute, Not Parent-Child Relationship Statute, Governs Issue of Paternity When Pregnancy Results from Artificial InseminationInIn re J.M.,2023 IL App (4th) 220537, a factually complex case, a same-sex female couple used the sperm of a male friend to conceive a child. No written legal agreement between the couple and the sperm donor was executed regarding the sperm donor’s intentions for paternal rights, although the evidence presented confirmed that the sperm donor had no desires or intentions to have any parental rights with respect to the child. During corollary proceedings to adjudicate the minor child as neglected, the guardian ad litem filed a petition to declare the nonexistence of a parent-child relationship (disestablishment petition) under §204(a)(1) of the Illinois Parentage Act of 2015, 750 ILCS 46/101,et seq.The GAL sought to rebut the presumption that the biological mother’s wife was the child’s “parent” when a DNA test confirmed who the biological father of the child was. The trial court denied the petition, and the appellate court affirmed. The issue before the court was whether the parent-child relationship statute (Article 2 of the Parentage Act) or the assisted reproduction statute (Article 7 of the Act) governed the paternity of the child. Section 201(a)(1) of the Parentage Act presumes that the spouse of the biological mother is the other parent if the parties are married at the time the child is born, but such a presumption can be rebutted with DNA evidence. However, the mother’s wife argued correctly that the parent-child relationship in this case was governed by the assisted reproduction statute under §103(d) of the Act, 750 ILCS 46/103(d), because “assisted reproduction” means artificial insemination and does not include any pregnancy achieved through sexual intercourse. Under §703(a) of the Act, 750 ILCS 46/703(a), any individual who is an “intended parent” is the “legal parent” of any child resulting from assisted reproduction. Further, if the donor and the intended parents do not have a written agreement in which the donor relinquishes all rights to the resulting child, the court shall determine parentage based on the evidence of the parties’ intent at the time of the donation. Therefore, the GAL failed to overcome the presumption that the biological mother’s wife was the child’s parent when she was his intended parent under the assisted reproduction statute.Trial Court’s Ruling That Sperm Donor Did Not Intend To Be “Parent” Affirmed Despite No Written Agreement Between Donor and Intended ParentsAt hearing on the GAL’s disestablishment of paternity petition, the GAL argued (1) that the trial court had no evidence of the sperm donor’s intentions at the time the insemination occurred since there was no written agreement with the intended parents and (2) that the donor’s participation in the court proceedings never showed an intention to not be a father.J.M., supra.The trial court disagreed, and the appellate court affirmed. The biological mother’s wife made a proffer, which both parties accepted at the hearing, that there was no intention between the three parties that the donor was to be a parent and that the legally married couple’s intention was to have a child of their own. Further, nothing with respect to the donor’s behavior contradicted the evidence as he submitted to DNA testing only in response to a court order for him to do so and only after he was held in contempt of court for not complying. After he was found to be the biological father of the child as a result of the DNA test, he surrendered his parental rights in open court. The trial court correctly determined parentage of the child in question under the assisted reproduction statute that the donor did not intend to be a parent and the legal parents of the child were the married couple who intended to be parents of the child.Postjudgment Allocation of Stock Options Pursuant To Undisclosed Asset Provision of MSA UpheldInIn re Marriage of Hyman,2023 IL App (2d) 220041, a postjudgment matter, the wife sought the allocation of stock options received by the husband during the marriage but not disclosed in the marital settlement agreement (MSA) pursuant to an undisclosed asset provision set forth in the MSA. During the dissolution proceedings, the husband activated a dormant limited liability company (LLC) entity and entered into a contract with a third party for consulting services for which he was compensated only in the form of stock options. The option agreement was executed in the husband’s name individually, rather than that of the LLC. By the time judgment was entered, 160 of the options had vested. Formal discovery was ongoing in the matter at the time settlement discussions ensued but was not completed. Included in the language of the MSA was that both parties had fully disclosed all of their assets (with an attached balance sheet) and an undisclosed asset provision that provided that if there were marital assets discovered and not otherwise disclosed, they would be divided 50-50. The wife subsequently filed a petition for allocation of the undisclosed options postjudgment, and the trial court ordered that all options awarded during the marriage were subject to a 50-50 division. The husband appealed. In its opinion, the appellate court relied heavily on the fact that the options were in the husband’s individual name, not in the name of the LLC, which was awarded to him in the MSA. In affirming the trial court, the court distinguishedIn re Marriage of Goldsmith,2011 IL App (1st) 093448, 962 N.E.2d 517, 356 Ill.Dec. 832, which dealt with a 735 ILCS 5/2-1401 motion alleging that the husband had concealed assets in an attempt to vacate a judgment. 2023 IL App (2d) 220041 at ¶18. A §2-1401 motion is based on newly discovered evidence and an inquiry of whether due diligence had been exercised at the time the judgment was originally entered by the petitioning party. By contrast, in this case, due diligence on the wife’s part was not required to be shown because she did not seek to reopen judgment. She merely petitioned the court to enforce the MSA and the undisclosed asset provision.Barring of Presettlement Negotiation Evidence Regarding Disposition of Business Entity in Postjudgment Hearing To Allocate Undisclosed Asset AffirmedIn a postjudgment hearing regarding whether an asset was undisclosed in the MSA, the husband sought to introduce evidence as to the settlement negotiations leading up to the entry of judgment.Hyman, supra.Such settlement negotiations concerned the disposition and allocation of a business entity awarded to the husband in the MSA. However, because the stock options in question at the postjudgment hearing were owned not by the aforementioned business but instead by the husband outright, the trial court properly barred such settlement negotiations. The trial court correctly identified the sole issue as whether the options had actually been disclosed. Discussions about negotiations regarding a business were irrelevant to whether the husband had told anyone about stock options he owned outright at the time of entry of judgment. Since the trial court found the options were not disclosed, there was no error in a postjudgment proceeding in the exclusion of evidence relating to prejudgment discussions.

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