IICLE Family Law Flash Points - January 2016

1.         Ex-wife entitled to enforce provision in judgment dividing ex-husband’s pension after his death but before entry of QDRO.  The Appellate Court reversed the trial court’s order dismissing ex-wife’s petition to enforce the judgment with respect to the division of husband’s federal pension because husband died before the entry of the QDRO.  Husband had remarried and his new wife claimed she was entitled to 100% of the benefits as a surviving spouse.  The new wife had also been joined as a party in the original divorce action by agreement, and therefore was a party to the judgment. Because the judgment was a final judgment when husband died, the action does not abate upon husband’s death, and thus, ex-wife was entitled to enforce the division of the pension as set forth in the judgment. The Second District departed from the First District’s ruling in In re the Marriage of Petraitis, 263 Ill.App.3d 1022 (1993) which held that the absence of a QDRO prevented the judgment from being final. In re the Marriage of Platt, 2015 IL App (2d) 141174.

2.         Trial court properly found husband had overpaid maintenance to wife in a proceeding to enforce the terms of the judgment.  At issue was the language in a judgment which did not specify exactly when husband’s maintenance obligation commenced.  The language provided a formula to calculate a percentage amount owed to wife annually.  Husband paid the annual amount to wife, and then sought reimbursement for $168,417.50 because the divorce was not finalized until October 2011 and the parties had continued to live their same lifestyle throughout the divorce proceedings.  The court found the language ambiguous because it did not specify whether the 2011 payment was to be pro-rated. After hearing testimony, the court found that the maintenance obligation was not intended to commence until the entry of judgment.  In re the Marriage of Figliulo, 2015 IL App (1st) 140290.

3.         Trial court reversed on denial of a plenary order of protection.  After entering an emergency order of protection and extending such order, the trial court denied a plenary order of protection despite the uncontroverted evidence that wife put on regarding husband’s historical violent behavior and a specific incident wherein he used “pressure point tactics” on her thumb to cause her a great deal of pain and shoved her into a cabinet causing bruising.  Husband was a former military policeman in the Navy. The Appellate Court held the trial court’s findings that the facts in evidence were nothing other than husband “being a bad husband” and that these instances did not rise to the level of intimidation or threats, was against the manifest weight of the evidence. In its holding the Court not only relief on prior case law, but also reiterated the Domestic Violence Act is to be broadly construed.   Carolyn Anne H. v. Robert H., 2015 IL App (2d) 150409.