IICLE Family Law Flash Points - February 2015

1.         Domestic partner allowed to pursue claims of partition, unjust enrichment, and imposition of a constructive trust against former domestic partner.  The First District, by allowing a domestic partner to sue her former partner of 26 years under several legal theories including partition, imposition of a constructive trust and claims of unjust enrichment, declined to follow the 1979 Supreme Court case of Hewitt v. Hewitt, 77 Ill.2d 49 (1979) which stood for the proposition that recognizing mutual property rights of unmarried cohabitants would violate the statutory ban on common law marriage.  In this case, Blumenthal filed suit to partition a Chicago home she owned with Brewer and Brewer counter-claimed under various theories asking the court to impose a constructive trust over their jointly owned residence where they had raised their three children and a partition action which would adjust her potion of the residence to account for her sole contributions to maintain the property since 2009.  The trial court dismissed Brewer’s claims because of Hewitt, but the Appellate Court reversed citing the plethora of changes in Illinois law since 1979, including the adoption of no-fault divorce, the passage of the Illinois Parentage Act, the passage of the Illinois Religious Freedom and Civil Union Act, and most recently, allowing same-sex couples to marry.  Because the domestic partners in this case held themselves out as committed partners, bought a house together, raised three children, commingled their assets, and divided up their domestic responsibilities and career objectives between themselves, the Court held Brewer should be allowed to pursue the same common law claims which are available to all people.  In ruling, the Court rejected Blumenthal’s argument that Brewer was seeking to retroactively define their relationship as a marriage in order to be able to claim the benefits of such legal status.   Blumenthal v. Brewer, 2014 IL App (2d) 132250.

2.         Order awarding grandparent visitation upheld.  The Appellate Court upheld a trial court’s ruling that the maternal grandparents had met their burden of demonstrating that the father’s actions and decisions denying visitation were harmful to the children’s mental, physical, or emotional health.  After the minor children’s mother died and their father was severely injured with brain trauma in the same car accident, the maternal grandparents cared for the children for a continuous 18 month period.  During this time they were their grandchildren’s primary caregivers.  After father recovered, he remarried and moved to New Mexico with the children, cutting off all contact with the grandparents who then brought a petition to establish grandparent visitation. The father’s and grandparent’s evidence painted two completely different pictures of the children’s interaction with the grandparents and each side had experts who rendered an opinion on whether the children would be harmed if they did not have visitation with their grandparents. After a lengthy review of all of the evidence presented to the trial court, the Appellate Court held that the trial court was in a superior position to judge the credibility and demeanor of the parties as well as observe them in court; therefore, the trial court’s ruling that the grandparents should be entitled to visitation was not against the manifest weight of the evidence.   Robinson v. Reif, 2014 IL App (4th) 140244.