IICLE Family Law Flash Points - December 2012

1.         Guardian has standing to institute dissolution of marriage proceedings on behalf of disabled party.  The Supreme Court overturned pre-existing case law and held that a guardian has standing to institute dissolution of marriage proceedings on behalf of a disabled party provided that the guardian can show by clear and convincing evidence that that bringing such a petition would be in the party’s best interest.  The Court held that a guardian should be allowed to use the substituted-judgment provisions under section 11a-17(e) of the Probate Act to make a decision to seek a dissolution of marriage if that was in the ward’s best interest.  Karbin v. Karbin, by and through her guardian Kara Hibler, 2012 IL 112815. 

2.         Supreme Court holds money a child support payor systematically withdraws from personal savings is not includable in the calculation of “net income” under Section 505 of the IMDMA.  The Supreme Court held that money an unemployed parent regularly withdrew from a savings account was in fact not includable in calculating “net income.”  The father was unemployed and living off assets awarded to him as part of the judgment for dissolution of marriage at a rate of $8,500 per month.  Although the amount of support generated by the payor’s actual net income was inadequate, the savings withdrawals were not “income.”  The proper procedure is to calculate net income without regard to the regular savings withdrawals, and then consider whether 28% of that amount of support is inappropriate based on a calculation which would include his actual liquidation of assets.  In re the Marriage of McGrath, 2012 IL 112792.

3.         Potential personal injury claim not marital property.  Because husband had not filed a personal injury claim at the time of trial for injuries suffered in a motor vehicle accident during the marriage, it was speculative as to whether he would actually file an action.  Therefore, any potential personal injury damages were not marital property.  The cases relied upon by wife in support of her position that the trial court should have considered the potential damages all involved personal injury claims filed before or during the pendency of the divorce case. In re the Marriage of Berberet, 2012 IL App (4th) 110749.

4.         Mother allowed to seek reimbursement for contribution to college expenses she made prior to her petition.  Mother sought contribution from father in the amount of $275,000 after the child completed college and law school.  Because the obligation of the parties was clearly and affirmatively expressed in the marital settlement agreement, even though the actual allocation of the expenses was not made and a dollar amount was not set forth when the judgment was entered, Mother could seek contribution from Father.  In re the Marriage of Koenig, 2012 WL 1493731.

5.         Summary judgment not proper where there was a material issue of fact whether shares in a family company acquired after the marriage were actually purchased via distributions from the company.  Shares in a company acquired through $60,000 distributions were not non-marital at summary judgment because husband did not put on evidence that the $60,000 were indeed distributions from the company and not compensation for his personal efforts relating to his employment at the company.  Husband offered no compensation analysis to prove that his salary was adequate compensation for his services and offered only testimony that the $60,000 were distributions with no supporting documentation.  In re the Marriage of Dann, 2012 IL App (2d) 100343.

6.        The mere label of maintenance as “rehabilitative” does not necessarily make it so.  In a post-judgment action, husband sought to terminate maintenance pursuant to the language in the parties’ Marital Settlement Agreement that provided husband was to pay his wife (who was diagnosed with myasthenia gravis during the marriage) with $2,000 per month for rehabilitative maintenance until his retirement, the death of either party, or wife’s remarriage. Husband sought termination when he retired at age 59. However, despite the word “rehabilitative” in the agreement, the parties had essentially entered into an agreement for permanent maintenance because the award was to continue without limitation until husband retired or the other terminating events.  Also critical was the fact that there was no language providing that after a certain amount of time the parties would determine if the wife had diligently sought employment in order to become self-sufficient.  In re the Marriage of Bolte, 2012 WL 3985846.