Sep 22, 2023

IICLE Family Law Flash Points - September 2023

Denial of Intrastate Relocation Reversed by Appellate CourtInBurmood v. Anderson,2023 IL App (2d) 230092, the mother sought to relocate the minor child from the Naperville area to Galesburg, which was denied by the trial court. The appellate court reversed. At trial, the guardian ad litem testified that he believed the loss of weekly contact between the father and the minor child would adversely affect their relationship and that a parenting schedule could not be fashioned that would be in the child’s best interests because there could be no parenting time for the father other than weekend parenting time. The trial court’s decision was against the manifest weight of the evidence because the evidence showed that the mother’s financial position would be improved due to more affordable housing and assistance from her extended family in Galesburg. The father’s failure to keep current in his child support for over a year made it difficult for the mother to make ends meet in the Naperville area. While the father’s weekday parenting time was significantly reduced (except during the summer), this did not outweigh the other factors, which weighed in favor of the child’s life being improved with a move to Galesburg. The appellate court found fault with the trial court’s disregard of the father’s child support arrears and his impeached testimony at trial that showed he was earning more income than he had disclosed. It is important to consider whether an objecting parent is financially supporting the child he or she wants to prevent from relocating; if the objecting parent is not, and the petitioning parent’s request to relocate is so that he or she can improve the financial condition of the minor child, that should be afforded additional weight.Wife Entitled to Maintenance Despite Waiver in Premarital AgreementAt issue on appeal inIn re Marriage of Amyette,2023 IL App (3d) 200195, was whether the “undue hardship” provision of the Illinois Uniform Premarital Agreement Act, 750 ILCS 10/1,et seq.,applied, which would preclude enforcement of the wife’s waiver of maintenance in the premarital agreement. The wife entered into the marriage in 1996 with a high school degree earning $25,000. She testified that during the marriage the husband did not support her advancing her education so she could increase her earning potential. At the time of divorce in 2019, she earned $35,000 and had some significant health issues. The undue hardship provision allows the court to award maintenance despite a waiver of maintenance in a premarital agreement if there are circumstances not reasonably foreseeable at the time of the execution of the agreement. The husband’s main argument was that it was reasonably foreseeable that the parties would get divorced, which the court held lacked merit. The premarital agreement statute focuses on the totality of the circumstances at the time of the divorce and whether those circumstances were reasonably foreseeable at the time the parties executed the agreement. There was sufficient evidence presented that the wife’s circumstances at the time of divorce were not reasonably foreseeable at the time the agreement was executed, and the trial court’s determination was not against the manifest weight of the evidence.Trial Court Reversed on Calculation of Wife’s Income for Purposes of Setting MaintenanceThe husband appealed the trial court’s determination of a maintenance amount and duration inAmyette, supra.The appellate court reversed, noting there was a discrepancy between what the wife reported on her amended financial affidavit and her paycheck. The appellate court also noted that it was curious that the trial court chose to adopt the wife’s original financial affidavit, which did not accurately reflect her expenses. The court noted that there were significant inconsistencies among the verbal and written evidence concerning the parties’ incomes and expenses and it was not asking the trial court to reconcile all of the inconsistencies, but that wholly adopting the wife’s original financial affidavit as fact was an abuse of discretion. The court remanded for a more detailed analysis of the maintenance calculation to ensure a just result.Trial Court Reversed on Designation of Real Estate as Marital Property Under Terms of Parties’ Premarital AgreementInAmyette, supra,the husband appealed the trial court’s finding that a piece of real estate listed as an exhibit to the premarital agreement as the husband’s nonmarital property was converted to marital property during the marriage, and thereby awarding the wife an equity interest in the real estate. The trial court invalidated the characterization of the property as the husband’s nonmarital property under principles of equity, and the appellate court reversed. General equitable principles are not one of the Illinois Uniform Premarital Agreement Act’s listed grounds for invalidating a premarital agreement. In its ruling, the trial court also found that, in the alternative, the agreement was unconscionable, but the trial court provided no authority for this ruling. As part of its opinion, the appellate court addressed an argument advanced that the parties had an oral postnuptial agreement that involved the wife agreeing to use $40,000 from the sale of her nonmarital property to pay off the husband’s parents’ loan, which he used to purchase his nonmarital property. Illinois law prohibited the alleged oral postnuptial agreement. Under §6 of the Act, 750 ILCS 5/6, a premarital agreement may be amended or revoked only by written agreement signed by the parties. 2023 IL App (3d) 200195 at ¶57. Therefore, the agreement was enforceable as written, and the property was in fact the husband’s nonmarital property. The court noted that the wife had been reimbursed her $40,000 by the husband at the time she had moved out of the property.

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