Nov 01, 2018

IICLE Family Law Flash Points - November 2018

1.Petition for Declaratory Judgment allowed to proceed even when underlying Petition for Dissolution of Marriage was voluntarily dismissed. After wife moved to voluntarily dismiss her petition for dissolution of marriage and husband had not filed a counter-petition, husband requested the court to proceed on his petition for declaratory judgment to declare the parties’ premarital agreement valid. The trial court granted wife’s motion for voluntary dismissal but found husband’s petition for declaratory judgment constituted an independent action which survived. Wife moved to dismiss the petition for declaratory judgment on the grounds the court lacked subject matter jurisdiction to hear the petition because the underlying divorce case had been dismissed. The trial court denied the motion and proceeded to hearing on the declaratory judgment. The Appellate Court upheld. In an extensive analysis of Illinois case law, the Court held the validity and enforceability of the agreement formed a separate claim for relief based on the cases of In re the Marriage of Rife, 376 Ill.App.33d 1050 (2007); In re the Marriage of Best, 228 Ill.2d 107 (2008); and In re the Marriage of Krol, 2015 IL App (1st) 140976. The Court noted at the time the trial court heard the motion for voluntary dismissal, an active controversy regarding the agreement remained. The pleadings that were pending were husband’s motion for declaratory judgment, wife’s countermotion for declaratory judgment, husband’s motion for leave to file a counter-petition, and wife’s petition for injunctive relief. Husband had also filed a separate petition for dissolution of marriage after his motion for leave to file a counter-petition was denied. Kranzler v. Kranzler 2018 IL App (1st) 171169.2.Premarital agreement executed moments before the wedding ceremony valid and enforceable. At hearing on a petition for declaratory judgment, husband sought to enforce the agreement and wife opposed. The trial court heard extensive testimony regarding the circumstances that surrounded the negotiation and execution of the agreement which included testimony that neither party necessarily wanted to the marry the other, but that both of their families put pressure on them to marry due to the fact wife was pregnant. Because the agreement was executed on October 9, 1984, common law, not the Premarital Agreement Act applied. The Agreement was held to be valid and enforceable. The wife was awarded a monthly amount in maintenance which increased in amount and length in proportion to the length of marriage, as well as a property settlement which included all assets in her name and half of all marital property. Therefore, the agreement did not create an unforeseen condition of penury and was fair and reasonable at the time of signing. Furthermore, there was no duress despite wife’s arguments that she was ill from the pregnancy at the time of signing and the wedding occurred right after she signed. It was presented to her several weeks prior, she had reviewed it with a lawyer, and it contained a full disclosure of all of husband’s assets. Furthermore, although wife argued she had tremendous pressure to get married from the parties’ families, the record was clear the pressure did not come from the husband. Kranzler v. Kranzler 2018 IL App (1st) 171169.3.United States declared minor children’s habitual residence under Hague Convention. Mother and father were divorced in Lithuania in 2009 and the children lived primarily with the mother who worked for the Lithuanian State and Diplomatic Protocol Department. In 2014, she was transferred to the Lithuanian Consulate in Chicago. After negotiation in the Lithuanian trial court, an order was entered allowing her to the right to take the children to Chicago. The order reflected the expectation that mother’s term would be three years, but it did not impose a three time limit on her right to retain the children in the United States. Within a year of being in Chicago, mother married, and she and her new husband later had a child. Father filed custody pleadings in Lithuania and also filed a Hague Case in Lithuania. In April 2015, the Central Authority of Lithuania forwarded the Hague Petition to the Central Authority of the United States. However, father did not institute any Hague proceedings in the United States for more than three years, in May of 2018. At the time of the evidentiary hearing, both minor children had become acclimated to the United States. They were living with their mother, step-father, and baby brother. They were fluent in English, enrolled in schools, and active in extracurriculars. Mother had extended family in Chicago who they were able to spend time with as well. The Court also noted that the parents’ last shared intent was the children would move with their mother to Chicago. Although father only thought the children would be gone for three years, he acquiesced in a “sea-change” in their lives and it is reasonable to construe this acquiescence as acceptance of their new habitual residence being the United States. The Court also conducted an in camera interview of the children where they credibly articulated their desire to stay in Chicago. Therefore, the United States became the children’s habitual residence during the period in which father acquiesced to their presence here. Bandzius v. Sulcaite, 2018 WL 5018459. (N.D. Illinois, Eastern Division)

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