IICLE Family Law Flash Points - December 2018

6.         Assets transferred to a series of irrevocable trusts during the marriage held to be neither marital nor nonmarital assets.  Husband prevailed in the trial court on a motion for summary judgment wherein he argued dozens of irrevocable trusts created during the marriage were neither marital or nonmarital property. Wife claimed that while the marriage was undergoing a breakdown, husband transferred millions of dollars into a series of irrevocable trusts in an effort to defeat her claims to marital property.  Relying on In re Marriage of Romano, 2012 IL App (2d) 091339 and Johnson v. LaGrange State Bank, 73 Ill.2d 342 (1978), the Appellate Court upheld the granting of the motion for summary judgment.  The estate plan was not a sham, colorable, illusory or tantamount to fraud, which is the standard under the two aforementioned cases.  The Court noted that it was not precluding the wife from arguing at trial that by creating the trusts, husband had committed dissipation or fraud against her.  In re Marriage of Larocque, 2018 IL App (2d) 160973.

7.         Petitioner in an Order of Protection case properly allowed to testify to facts not contained in the body of the petition.  At a hearing on a plenary order of protection, the petitioner testified to two specific fact patterns that did not appear in her underlying petition: (1) that the respondent had pushed their son into a wall; and (2) that the respondent hit their son in the head with a cell phone.  The trial court issued a one year order of protection and the respondent appealed on the grounds that the petitioner should not have been able to testify as to acts not contained in her underlying petition. The Appellate Court affirmed. Section 214 of the Domestic Violence Act provides that in determining whether to grant an order of protection, the trial court shall consider the nature, frequency, severity, pattern and consequences of the respondent’s past abuse of petitioner or any family or household member as well as the danger that any minor child will be abuse.  Therefore, not only was the trial court allowed to consider the evidence that the respondent had recently pushed the child and hit him in the head with a cell phone, it was required to do so.  Sandberg v. Brian B., 2018 IL App (2d) 180082.

8.         Net proceeds from a personal injury settlement attributable to damages for pain and suffering and disability is income for child support purposes.  The Fourth District joined with the Fifth District case of In re the Marriage of Fortner, 2016 IL App (5th) 150246, in holding that pain, suffering and disability damages are income for child support purposes.  This holding is directly contrary to the Second District’s holding in Villanueva v. O’Gara, 282 Ill.App.3d 147 (1996). The Court held that Vallanueva failed to consider the effect damages awarded for pain and suffering and disability had on the receiving parent that was a positive impact on the parent’s ability to support his or her child.  The Court believed its holding struck a balance between assuring reasonable provisions are provided for children and the realities of the personal and financial costs associated with injuries for which a personal injury award is intended to compensate.  In re the Marriage of Plowman and Lawson, 2018 IL App (4th) 170665.

9.         Judgment for dissolution vacated due to trial court recusing itself, subsequently reconsidering the recusal, and rendering a decision at trial.  At issue was whether a trial judge has the authority to reconsider its own recusal. The judge orally recused himself and entered an order transferring the case to another judge.  When the matter came before the court again for a pre-trial conference, the judge announced that he was no longer recusing himself. Once a judge recuses himself or herself, the judge has no power to enter further substantive orders absent an agreement by counsel for the judge to remit the recusal.  Therefore, the judge cannot reconsider his or her own recusal because that would be a substantive decision.  Therefore, the entire judgment for dissolution of marriage was vacated and remanded.  In re the Marriage of Peradotti, 2018 IL App (2d) 180247.

10.       Fair and reasonable disclosure in a premarital agreement does not mean “complete” disclosure.  Wife challenged the validity of a premarital agreement on the grounds that it was unconscionable; that there was not a fair and reasonable disclosure of property by husband; that she did not execute a written waiver of disclosure; and that she did not have adequate knowledge of husband’s assets.  The disclosure did not include husband’s earnings from a business, his various cars, and furniture; and it did not place values on some disclosed assets such as husband’s home and farmland that he owned.  However, the statutory requirements of a fair and reasonable disclosure requires less than a complete disclosure, and the failure to disclose any particular asset is not fatal to the enforcement of the agreement.  In re the Marriage of Woodrum, 2018 IL App (3d) 170369.