Dec 01, 2016

IICLE Top Ten Family Law Flash Points of 2016

1. Illinois Supreme Court declares former domestic partner’s claim for restitution barred by statutory prohibition on common law marriage. In the matter of Blumenthal v. Brewer, the Illinois Supreme Court has firmly upheld its prior case of Hewitt v. Hewitt, 77 Ill.2d 49 (1979) and ruled that the despite all of the recent and numerous changes to family-related statutes, the statutory provision against common-law marriage (750 ILCS 5/214) remains unchanged, and therefore, unmarried domestic partners cannot bring claims to enforce mutual property rights when those rights arise from a marriage-like relationship between the parties. Blumenthal v. Brewer, 2016 IL 118781.2. New statutes taking effect:IMDMA and Parentage trailer bills to take effect January 1, 2017. The “clean-up” bills to last year’s new Illinois Marriage and Dissolution of Marriage Act and Parentage Act contain a number of clarifications. The IMDMA trailer bill can be found here: Public Act 99-763 and the Parentage Act trailer bill can be found here: Public Act 99-769.New income sharing child support statute to take effect July 1, 2017. Illinois will be moving from a straight guideline child support state into an “income shares” model effective July 1, 2017. This overhaul of the child support statute includes several revised definitions as well as charts, which will be critical to arriving at any amount for child support, which are not yet finalized. The general concept of the statute is that whatever amount is determined to be needed by the child, the parent with the higher percentage of the combined income is to pay the other parent the same percentage of the determined amount as is the percentage difference in the parents’ respective incomes. The full statute can be found here: Public Act 99-7643. Husband’s settlement proceeds from wrongful conviction lawsuit are marital property. The Appellate Court answered in the affirmative the following certified question: “Whether the settlement proceeds received from a wrongful conviction action are marital property when (a) the coerced confession and initial conviction occurred before the marriage, and (b) the conviction was reversed during the marriage.” Husband was incarcerated beginning in 1992 and married his wife in 2000. In 2011, the Appellate Court reversed husband’s third conviction and he was released from prison in January 2012. In October 2012, he filed a section 1983 action, which under federal law accrued when his conviction was reversed, alleging violation of his civil rights based on his wrongful conviction. He then filed a petition for dissolution of marriage in 2014 and in 2015 settled his federal section 1983 lawsuit for $20 million. The Appellate Court found that the settlement proceeds were marital property because a cause of action is marital property if the cause of action accrues during the marriage. Because the cause of action arose only when the third conviction was reversed in 2011, eleven years after the marriage, the settlement proceeds were marital property. In re the Marriage of Rivera, 2016 IL App (1st) 160552.4. New maintenance guidelines under January 1, 2015 amendments to IMDMA maintenance provision should not be applied retroactively. The trial court ordered husband to pay wife $2,088 per month in maintenance. Husband appealed claiming that the court should have applied the new maintenance guidelines that took effect January 1, 2015 which would have resulted in an award of $1,328 per month. In this case, the hearing took place and proofs closed on October 24, 2014, before the new maintenance statute took effect. The trial court took the case under advisement and did not rule until after January 1, 2015. Just because the matter was not ruled on until 2015 does not warrant retroactive application of the law. In re the Marriage of Cole, 2016 Il App (5th) 150224.5. Earned retainer fees of $60,000 disgorged under the leveling of the playing field statute. The Second District Court affirmed a trial court’s decision concerning interim fee disgorgement in favor of the husband’s attorneys in the amount of $60,000 for fees earned and paid to wife’s attorneys. Husband earned a six figure salary, had paid his attorneys $2,500 and owed $53,000 at the time of the hearing. Wife was unemployed but had borrowed $130,000 from her mother to pay her attorneys’ fees. Relying on the Supreme Court case of In re the Marriage of Earlywine, 2013 IL 114779, the Appellate Court held the Supreme Court did not expressly limit its holding to only advance payment retainers and that the funds need not be sitting in a client trust account in order to be “available” for disgorgement under the interim fee statute. In re the Marriage of Squire, 2015 IL App (2d) 150271.6. First District holds earned fees already paid are not subject to disgorgement. After a hearing on wife’s petition for interim fees, the trial court found that both parties lacked sufficient access to assets or income to pay reasonable attorneys’ fees and ordered: (1) an allocation of funds which were held in wife’s attorney’s trust account; and (2) disgorgement of $16,000 from husband’s attorney, the total of which resulted in each party being allocated $50,500. Departing from the Second District’s opinion in In re the Marriage of Squire, 2015 IL App (2d) 150271 (above), the First District declined to uphold the disgorgement and noted that “available” funds was not the only consideration when ordering disgorgement under “leveling of the playing field” and noted lawyers would face significant burdens if they earned fees, paid themselves, and then used that money to pay salaries, overhead litigation expenses, but were then later required to pay out a disgorgement order. In re the Marriage of Altman and Block, 2016 IL App (1st) 143076.7. Trial court’s deviation from guideline support and accompanying findings upheld. The Appellate Court affirmed a trial court’s modification of support from $400 per month to $5,912 per month and the noted specific language of the IMDMA requires the trial court to determine the minimum amount of support under the guidelines; apply the guidelines unless the court finds a deviation is appropriate; if a deviation is appropriate, state the amount of support that would have been required under the guidelines; and the reason or reasons for the variance from the guidelines. The statute does not require the court to make specific findings relative to each factor listed in the statute when deviating. Melamed v Melamed, 2016 IL App (1st) 141453.8. Trial court correctly divided wife’s teacher’s pension without considering husband’s social security disability, but should have reserved maintenance until wife retired. Wife appealed the trial court’s division of property under a divorce judgment which awarded each party a one-half interest in wife’s teacher’s pension. She had requested that she be awarded her pension outright or maintenance. The parties had been married 37 years, and wife’s retirement from teaching would take effect in the next two years. Husband drew social security disability. The trial court properly did not consider husband’s social security benefits when dividing the marital property, but maintenance should have been reserved until wife’s retirement. In re the Marriage of Roberts, 2016 IL App (3d) 140263.9. Trial court’s $196,250 valuation of a family business that managed investment accounts with $75 million of assets under management reversed. The Appellate Court reversed a trial court’s finding that husband’s investment management business, which had $75 million in assets under management, had a value of $196,250. The Appellate Court noted several problems with the trial court’s finding, including that husband’s expert’s model’s objective was simply to conclude what portion of the total fair market value constituted enterprise and personal goodwill, not the fair market value of the business. It was also against the manifest weight of the evidence for the court to conclude that the fair market value of a business would be less than what husband had paid for a portion of the business a year before trial. In re the Marriage of Johnson, 2016 IL App (5th) 140479.10. Georgia law, not Illinois, controlled the issue of contribution of college expenses, and therefore father was not obligated to contribute to emancipated daughter’s college tuition. Mother and father divorced in Georgia in 2003 and the mother and children later moved to Illinois. In 2014, mother filed a petition in Illinois to enroll the Georgia judgment as well as a petition for contribution to college expenses. The Illinois trial court granted the petition, but the Appellate Court reversed holding that under the Uniform Interstate Family Support Act (UIFSA), Georgia law controlled the issue because the law of the state that issued the initial child support order governs whether a parent will be required to contribute to a child’s college expenses. In Georgia, a parent has no duty to pay for a child’s expenses once a child has reached the age of 18. In re the Marriage of Jones, 2016 IL App (3d) 150237.

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