Dec 01, 2020

Top Ten Family Law Flash Points of 2020

1. Illinois Supreme Court holds a person who is a partner in a civil union is a “stepparent” under the IMDMA. The Supreme Court of Illinois answered the following two certified questions in the affirmative: (1) whether a party to a civil union has standing to request visitation with her deceased partner’s child as a step-parenting and; (2) whether that party has standing to request parental responsibilities. The Illinois legislature expressly stated that the purpose of the Civil Union Act was to provide persons entering into a civil union with the obligations, responsibilities, protections, and benefits afforded or recognized by the law of Illinois to spouses. Therefore, when a child’s parent enters into a civil union with an individual who is not that child’s other parent, that individual becomes the child’s stepparent as defined by the IMDMA. The Court was clear to state that its holding is expressly limited to only those parties who have chosen to enter in a civil union instead of a marriage. Sharpe v. Westmoreland, 2020 IL 124863.2.Illinois Supreme Court holds permissive military credit earned prior to the marriage but purchased during the marriage with marital funds is marital property. The sole issue on appeal was whether husband’s permissive pension service credit based on time served in the military 20 years prior to the marriage was marital or non-marital property. In its holding, the Court relied solely upon the statutory construction of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) and the Illinois Pension Code. Specifically, the Illinois Pension Code requires that a service member have up to four years of active duty service without a dishonorable discharge as well as the payment of the statutory monetary contribution in order to acquire the permissive service credit. Therefore, the permissive service credit was not acquired until the payment was made during the marriage – not when the active duty service was performed. Therefore, the permissive service credit was acquired only after all requirements for obtaining the credit were satisfied. In re the Marriage of Zamudio and Ochoa, 2019 IL 124676.3. Constructive trust over a portion of ex-husband’s disability pension in favor of ex-wife upheld. Ex-wife of a former Evanston fire fighter, who had been married to him for over 20 years and awarded 50% of the marital portion of his pension plan, filed a third-party complaint against the surviving spouse of the firefighter alleging the second wife was unjustly enriched because she received 100% of the available benefits after the firefighter passed away. The second wife had been married to the fire fighter for 9 months when he passed away and received 100% of the available death benefits from the pension fund. Before his death, the fire fighter applied for and was granted a disability pension benefit. The second wife was unjustly enriched and the first wife was entitled to the creation of a constructive trust for 50% of the gross monthly amount received by the second wife. Because the fire fighter was already eligible for retirement when he was awarded disability benefits, and he chose to receive disability benefits rather than retirement benefits, those benefits were retirement in substance. In re Marriage of Shulga, 2019 IL App (1st) 182028.4.Increase in parenting time alone not a substantial change of circumstances warranting a modification of child support. The Appellate Court upheld a trial court’s order granting a motion for directed finding submitted by wife after husband presented his case which was essentially that the change in parenting time from 82 overnights under the original agreement to between 130-148 overnights in the modified agreement was a substantial change in circumstances. The Court noted that the record showed no discussion about how the change in parenting time impacted the parties’ respective finances or whether there were any changes in the child’s needs. Husband had only presented the court with a calendar showing the parenting time that he did exercise which was not enough to fulfill the burden of proving a substantial change. In re Marriage of Wengielnik, 2020 IL App (3d) 180533.5.Second District upholds the survival of interim fees awarded but not paid prior to the entry of a voluntary dismissal order. Husband and wife brought a joint motion to voluntarily dismiss their respective petition and counter-petition on file. At the hearing on the motion for voluntary dismissal, the court granted the motion but entered judgment against the husband in favor of wife’s former counsel in the amount of $7,500 which was derived from an earlier interim fee award entered against husband which had not been paid. The Second District upheld the trial court’s rationale that husband “should not be allowed to escape liability for a previously established obligation through such a procedural maneuver.” Further, the interim award was converted to a judgment prior to the dismissal of the case, negating the argument that the interim fee order was a temporary order which expired. In re Marriage of Keller, 2020 IL App (2nd) 180960.6.Pre-trial memorandum properly considered by trial court in a Section 2-1401 action. Wife filed a Section 2-1401 action alleging fraud on the part of husband in an effort to conceal his income during a divorce case to which the husband filed a motion for summary judgment which was granted. The trial court properly considered the wife’s previously submitted pre-trial memorandum to the court. Rule of Evidence 408(a) states that such “settlement” offers are inadmissible only when they are offered “to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction.” Because the memorandum was not offered to prove liability for or invalidity of a claim and did not involve a prior inconsistent statement, the court’s consideration of it was permissible. ¶33. In re Marriage of Onishi-Chong and Chong, 2020 IL App (2d) 180824.7.Trial court did not abuse discretion when striking a portion of a custody judgment which required the parties to seek a written report from a parenting coach before filing a custody or visitation motion. The requirement of the parties’ amended custody judgment that the parties must first seek a written report from the behavioral parenting coach expert prior to filing a motion regarding custody or visitation was properly vacated by the trial court. Such language goes against the legislative intent of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) which is that parties who are part of a custody judgment are to be able to seek modifications of their own accord. The Court also noted that the parties had a 12- page custody judgment and that the section in question was one sentence out of the entire judgment. Therefore, the trial court had authority to strike one sentence in the judgment as a minor modification without a showing of a substantial change of circumstances if the change was in the best interest of the children pursuant to Section 610.5(e) of the IMDMA. In re Marriage of Wendy S. and George D. 2020 IL app (1st) 191661.8.Amended statutory maintenance guidelines did not apply to review proceedings because petition for review was filed prior to the effective date of the amendment. The Third District addressed the issue of the appropriate maintenance statute to apply when the relevant petition in question was filed prior to the effective date (January 1, 2017) of the amended statute. In this case, wife filed for a review of her maintenance in August 2015. Husband later moved to terminate maintenance in 2018. The trial court heard both matters at the same time and in reducing wife’s maintenance award found that Section 504(b-8) did not apply because it was not in effect in 2015 when wife filed her petition for review. The trial court reduced wife’s monthly maintenance from $1,000 per month to $675 per month based on husband’s reduction in income which was not in bad faith and wife’s ongoing need for maintenance. Although the current Section 504(b-8) provides guidance on what types of maintenance awards a court can issue upon review and references the statutory guidelines, the statute in effect in 2015 did not contain those statutory guidelines, and therefore, the trial court did not error when it did not apply the guidelines. The Appellate Court’s decision is consistent with the prior case law of In re Marriage of Kuper, 2019 IL App (3d) 180094 and In re Marriage of Harms, 2018 IL App (5th) 160472. In re Marriage of Burdess 2020 IL App (3d) 190342.9.Review proceedings are not governed by the 2016 version of IMDMA where judgment was entered in 2012. In a maintenance review proceeding where the trial court granted wife’s petition to extend maintenance at the rate she was receiving in the judgment (entered in 2012), wife appealed the trial court’s failure to apply the 2016 version of the IMDMA, under which she argues she would have received indefinite maintenance in an amount equal to approximately $5,000 more per month. The Second District held the language in Section 801(c), which refers specifically to modification proceedings, does not address review proceedings, and therefore, a maintenance review hearing does not fall within the parameters of Section 801(c) such that the guidelines should have been applied in this matter. Modification proceedings and review proceedings are distinguishable because a review considers a prior court order whereas a modification arises from a substantial change in circumstances. The Court noted that its opinion was contrary to the Fourth District case of In re Marriage of Kasprzyk, 2019 IL (4th) 170838. In re Marriage of Brunke, 2019 Il App (2d) 190201.10.Trial court’s ruling regarding “Special Immigrant Juvenile” finding reversed. In a parentage action, a mother from Guatemala sought “Special Immigrant Juvenile” (SIJ) status for her son, which is a predicate finding required in order for a minor to be qualified to petition to become a lawful permanent resident of the United States. The trial court denied the request for SIJ status after interpreting and applying the applicable federal statute (8 U.S.C. 1101(a)(27)(J) (2018)) and the Appellate Court reversed. A child need not be declared a ward of the state, placed in long term foster care, or have a nonparent guardian appointed in order to qualify for SIJ findings. A child may be considered dependent upon the court when the court is required to make a judicial determination about the child’s’ custody and care, and a court order allocating sole decision-making responsibilities falls squarely within this purview. In re Parentage of Ervin C., 2020 IL App (2d) 200236.

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