IICLE Family Law Flash Points - April 2016

4.         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, and 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 was a pharmacist who drew social security disability.  The Appellate Court held the trial court properly did not consider husband’s social security benefits when dividing the marital property, but reversed the denial of maintenance.  Maintenance should have been reserved until wife’s retirement because the evidence showed that upon her retirement, she will receive $1,310 per month and be unable to meet her living expenses while husband will receive $3,414 per month from his social security and half of her pension, and will have the ability to pay maintenance.  In re the Marriage of Roberts, 2016 IL App (3d) 140263.

5.         Trial court upheld in denying modification to parenting schedule.  Mother sought a modification to the parenting schedule where father had a rotating 3-week schedule of extended weekends, two afternoons during the same weeks, and an overnight mid-week in week #3.  Mother had all other parenting time.  Mother sought modification to a more traditional schedule of alternating weekends.  After an evidentiary hearing in which the eldest child (14) testified, the court declined to modify the schedule ruling it was not in the children’s best interests and that no substantial change had occurred since the entry of the original parenting schedule. The Appellate Court affirmed noting that the child’s testimony was almost identical to that of his mother’s and when asked why he no longer wanted to have extended time with his father his answer was because it was “unfair to his mother.” In re the Marriage of Adamson, 2016 IL App (3d) 150105.

6.         Illinois had emergency temporary jurisdiction of minor child under UCCJEA but Louisiana maintained exclusive continuing jurisdiction for purposes of making permanent custody modifications.  Under the parties’ divorce judgment entered in Louisiana, mother was the primary domiciliary parent of the minor child and father had a visitation schedule.  Mother’s job as a pipefitter caused her to move locations frequently.  During one job, she left the child with father in Illinois in order to go to Texas for a job and to be with her boyfriend.  While in Texas, her boyfriend was murdered while she was present in an alleged drug deal.  Father sought an order of protection for himself, his wife and the child.  At the hearing, mother testified that she still maintained a residence in Louisiana.  An order was entered denying the order of protection, but granting a motion for temporary custody of the child to the father.  The Illinois Court subsequently granted father’s petition for permanent modification of custody.  Mother appealed the modification and the Appellate Court reversed holding that the Illinois court properly exercised emergency temporary jurisdiction, but it should have conferred with the Louisiana court and given father the opportunity to file a petition there for modification of custody because Louisiana maintained exclusive continuing jurisdiction over the matter since the evidence showed wife was still a resident of the state.  Gorup v. Brady, 2015 IL App (5th) 150078.