Jun 03, 2021

IICLE Family Law Flash Points - May 2021

Maintenance Terminated Due to CohabitationInIn re Marriage of Aspan, 2021 IL App (3d) 190144, the Third District upheld the trial court’s termination of maintenance payable from the husband to the wife due to the wife’s cohabitation. The wife appealed, arguing that she was not in a resident, continuing conjugal relationship. The wife alleged that the man was nothing more than the father of a friend and a landlord from whom she was renting space. The contrary evidence, which the appellate court noted fulfilled four of the six cohabitation factors underIn re Marriage of Snow,322 Ill.App.3d 953, 750 N.E.2d 1268, 255 Ill.Dec. 883 (3d Dist. 2001), included moving into the man’s mobile home and having her son move in with them and using the man’s address on her son’s parole documents; the purchase of a new car for her by the man after her son totaled hers; and the intermingling of their finances. The wife put the man’s name on her bank account and disbursed a cashier’s check from that account for the purchase of a home in only the man’s name. She moved into said home before he did and paid for utilities, maintenance, and repairs. She also posted on her Facebook page that she had taken “her granddaughters” (actually his granddaughters) to the ballet. 2021 IL App (3d) 190144 at ¶¶16 – 17. Her argument that she was merely living with him and not in a de facto marriage was not credible, and the trial court’s ruling was not against the manifest weight of the evidence.Trial Court: Substantial Change in Circumstances Upheld, butFailed To Consider Statutory FactorsInIn re Marriage of Osseck, 2021 IL App (2d) 200268, the husband filed a petition to modify his $18,500 per month maintenance payments, which he was ordered to pay the wife in the judgment for dissolution of marriage. The basis for the modification was that his annual income dropped from $811,000 at the time of judgment to $688,369. 2021 IL App (2d) 200268 at ¶28. The trial court ruled that a substantial change in circumstances had occurred, and the wife appealed, arguing that the husband’s evidence was self-serving and speculative and that he remained able to satisfy his obligation despite any decrease in income. The appellate court affirmed the trial court’s finding of a substantial change in circumstances. The main issue was the calculation of the husband’s income. His company had been bought, and while his prior income was 100-percent commission-based, his new compensation structure included a base salary of $250,000, quarterly bonuses tied to company performance, and an annual bonus that was tied to individual sales performance. The evidence showed that his compensation in the second half of the year when the new compensation structure took effect was much less than the first half under the old structure and that his projected income for 2021 could fall to $370,000. 2021 IL App (2d) 200268 at ¶51. The court, however, did reverse in part on another point and remand.The trial court was upheld in finding that the husband’s decrease in income was a substantial change in circumstances but reversed on the calculation of the new payment. When calculating the new amount, the trial court used 27.4 percent of the husband’s base salary as a monthly payment and ordered the husband to pay an additional 27.4 percent of any bonuses. 2021 IL App (2d) 200268 at ¶29. The 27.4 percent was what was requested by the husband because it was the percentage of his gross applied in the original judgment. The court also ordered it would revisit the payments in July 2021, which would have been two years into the husband’s new compensation structure at his company, and called its order a “temporary” order.Id.The appellate court reversed. The trial court was required to consider the factors in §§510(a-5) and 504(a) of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/101,et seq.,which the record did not show that the court had considered when setting the new maintenance award. 2021 IL App (2d) 200268 at ¶37. Upon a substantial

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