IICLE Family Law Flash Points - January 2015

1.         Section 2-1401 claim allowed to go forward due to potential nondisclosure of a marital business interest.  The Appellate Court reversed the trial court’s denial of a motion to dismiss husband’s section 2-1401 motion to vacate a judgment for dissolution of marriage which incorporated a Marital Settlement Agreement.  Husband filed the motion to vacate the judgment six days after he learned that wife had filed a breach of contract action against her brother and his business for his alleged failure to grant her a 40% ownership interest in his company which she helped him form during her marriage and which she claimed she was to receive upon the completion of her pending divorce.  During the original divorce proceedings, husband suspected that wife had transferred her ownership interest in a marital business to her brother, but despite significant discovery efforts, motions, and subpoenas, he could not prove the transfer.  The Appellate Court held that husband stated a valid claim because, if the facts as he plead were true, the alleged interest in wife’s brother’s company was created during the marriage with marital assets and wife’s efforts, and wife was to receive a 40% ownership interest after her divorce.  The Court also found husband exercised due diligence in pursuing the claim, and therefore the 2-1401 motion should not have been dismissed. In re the Marriage of Little, 2014 IL App (2d) 140373.

2.         Termination of contribution to college expenses reversed.  The Appellate Court reversed a trial court’s termination of mother’s contribution to son’s college expenses (which was 60% and father’s was 40%) because mother failed to show a substantial change of circumstances.  The Court noted that the trial court’s finding that the parties’ annual incomes were relatively equal was against the manifest weight of the evidence because mother earned $80,000 per year, and father was disabled and had an annual income of $34,000.  Even after mother paid father child support, there was a $33,960 difference in their incomes.  The Court also stated that while it was clear that the mother and son’s relationship was strained, this was not a substantial change in circumstances, nor were his grades (low 2.0 range) because there was no evidence his grades suddenly dropped.  Finally, the Court noted that the child’s decision to not work to contribute to his own expenses was consistent throughout his college career which was now in its third year, so this also was not a substantial change in circumstances.  In re the Marriage of Saracco, 2014 IL App (3d) 130741.

3.         Funds contained in a bank account opened by husband during the marriage are marital property because husband did not meet his burden to show the funds were his nonmarital property by clear and convincing evidence.  The Appellate Court reversed a trial court’s ruling that an account in husband’s name was his nonmarital property because the trial court incorrectly assumed the burden was on the wife to show that the funds were marital when the IMDMA states that all property acquired by either spouse during the marriage and before a judgment of dissolution is presumed to be marital property, and that the presumption can be overcoming only with a showing by clear and convincing evidence that the property falls into an exception under Section 503(a).  Husband argued that the funds belonged to his father, but the only evidence the trial court had before it that this was true, was husband’s testimony, which the court had found to be lacking in credibility in its opinion.  The documentary evidence only showed that the funds made a “brief stop in other accounts” before being transferred into the account at issue.  Thus, husband did not meet his burden and the funds in the account should have been held to be marital property.   In re the Marriage of Dhillon, 2014 IL App (3d) 130653.