Sep 01, 2014

IICLE Family Law Flash Points - September 2014

1. New maintenance statute sets guidelines for cases where the parties’ combined gross income is $250,000 or less. The new maintenance statute which goes into effect on January 1, 2015, creates permissive guidelines for the trial court to apply in situations where the parties’ combined gross incomes are $250,000 or less and no multiple family situations exist. Pursuant to the amendments, in all cases the court must first determine if maintenance is appropriate under the factors enumerated in Section 504(a). If the court makes such a finding, it then turns to the guidelines to make the calculation by: (1) taking 30% of the payor’s gross income less (2) 20% of the payee’s gross income. However, the maintenance award may not result in the payee receiving a total that is in excess of 40% of the combined gross income after the maintenance payment is made. The duration of the maintenance is calculated by multiplying the length of the marriage by whichever factor applies: 0-5 years (.20); 5-10 years (.40); 10-15 years (.60); or 15-20 years (.80). For a marriage longer than 20 years the court has discretion to order either permanent maintenance or maintenance for a period equal to the length of the marriage. A complete copy can be found here.2. Uncapped maintenance award of 20% of any bonus husband received during maintenance term was an abuse of discretion. The Appellate Court overturned a trial court’s ruling which provided wife with monthly maintenance of $3,700 per month plus 20% of husband’s future bonuses for a period of seven years with a review. Husband argued on appeal that the uncapped portion of the bonus had no relation to wife’s standard of living during the marriage. The Appellate Court agreed and stated that an uncapped amount based on a percentage of his future bonuses could set up a windfall for wife and has no evidentiary relation to wife’s present needs or the standard of living during the marriage. In re the Marriage of Micheli, 2014 IL App (2d) 121245.3. Illinois had jurisdiction to award temporary maintenance and attorneys’ fees when wife had never been properly served with process of proceedings in Poland nor submitted herself to the jurisdiction of Poland. The parties had married in Poland but later moved to Illinois. Husband filed a Petition for Dissolution of Marriage in Poland and wife filed in Illinois weeks later. The Polish court entered a judgment for dissolution of marriage but it did not address division of the parties’ property or the issue of maintenance. Wife later filed a petition to register the Polish judgment in Illinois which was granted. She then filed a petition under section 503(d) of the IMDMA requesting the Illinois court to allocate the parties’ property. Section 503(d) permits the trial court to dispose of marital property following dissolution of marriage by a court which lacked jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property. Husband filed a motion to dismiss this petition on the grounds that the court lacked jurisdiction to dispose of the parties’ property under 503(d); that a postnuptial agreement signed by the parties set forth the parties’ interests in the marital estate under Polish law; and because wife had a pending petition for support in Poland. The trial court denied the motion to dismiss and ordered temporary maintenance and attorneys’ fees which husband refused to pay. He was subsequently held in contempt and appealed the trial court’s rulings. The Appellate Court affirmed and stated that in fact the record did not reflect that the wife had submitted herself to the Polish courts. In fact, the orders in the Polish court demonstrated that the issue of jurisdiction of the Polish court was in fact an area of dispute between the parties. Therefore, the court’s finding that it had authority under Section 503(d) of the IMDMA to enter orders regarding temporary support and attorneys’ fees was not against the manifest weight of the evidence. In re the Marriage of Lasota and Luterek, 2014 IL App (1st) 132009.4. Section 201 of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) establishes a procedural framework under which a court may exercise subject matter jurisdiction, but does not establish subject matter jurisdiction itself. The Fourth District has held in paternity action that the UCCJEA itself does not confer subject matter jurisdiction on a trial court to hear a child custody matter. This is because a circuit court’s subject matter jurisdiction is conferred entirely by the Illinois constitution. The Court relied heavily on the Supreme Court case of Belleville Toyota v. Totyota Motor Sales, 199 Ill.2d 325 (2002) which stated that while the legislature was free to create new justiciable matters by enacting legislation, the creation of such matters does not mean the legislature is conferring subject matter on the courts since such jurisdiction is derived only from the Constitution. The Fourth District acknowledged that confusion that has ensued because of the UCCJEA’s use of the word “jurisdiction” in section 201. The Court concluded that the section 201 should simply be read to mean that the statute provides a procedural framework within which a trial court may exercise its subject matter jurisdiction. McCormick v. Robertson, 2014 Il App (4th) 140208.5. Trial court’s calculation of net income for child support upheld. In a post-judgment modification proceeding, the Appellate Court upheld the trial court’s inclusion of many income items for the purposes of calculating support. First, the ex-husband argued that the court erred when only using one year of income to calculate his net income. However, the Appellate Court held the court properly focused on ex-husband’s earnings in the year in which the court held the modification hearing because the relevant focus for determining income under section 505 of the IMDMA is the parent’s economic situation at the time the calculation is made. Second, ex-husband argued the court should not have included $5,000 of income which was an amount he converted from a traditional IRA to a Roth IRA, but the Appellate did not find that to be an abuse of discretion because the IMDMA defines net income as the total income from all sources and the transaction was a taxable event. Next, ex-husband argued that the court improperly estimated his annual dividend income for the entire year when it only had the first quarter figures and multiplied that number by four. The Appellate Court ruled the trial court had the authority to make such an estimation and noted that he could earn more dividend income in a subsequent year. Finally, ex-husband argued the court should not have included earnings from his sale of restricted stock options that he was awarded as a property settlement in his income for support purposes because the parties’ Marital Settlement Agreement precluded this from being considered when setting support. However, because a provision which precludes certain income from consideration for child support purposes, is against public policy, the Appellate Court refused to enforce it. Therefore, it was properly included as income for purposes of calculating support. In re the Marriage of Pratt, 2014 IL App (1st) 130465.

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