IICLE Family Law Flash Points - July 2015

1.         United States Supreme Court legalizes same-sex marriages nationwide.  In a 5-4 decision, the U.S. Supreme Court held that the Fourteenth Amendment of the Constitution requires individual states to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage is lawfully performed in another state.  Fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs.  The Court relied on precedent that invalidated bans on interracial marriages and denying prisoners the right to marry in its ruling.  Additionally, the right of same-sex couples to marry is also derived from the Fourteenth Amendment’s guarantee of equal protection.  Justice Kennedy authored the Court’s opinion and was joined by Justices Ginsburg, Breyer, Sotomayor and Kagan.  Chief Justice Roberts and Justices Scalia, Thomas, and Alito all filed individual dissenting opinions.  Obergefell v. Hodges, 576 U.S. ______ (2015).

2.         Illinois Supreme Court holds social security benefits are not marital property subject to consideration or division in a divorce case.  At trial, the court declined to decrease the value of the husband’s municipal pension by the hypothetical value of the social security benefits that he would be entitled to receive had he contributed to social security. Husband’s expert presented testimony regarding the value of his government pension plan and used a “Windfall Elimination Provision” (WEP) wherein she calculated what husband’s social security benefit would be had he participated in that program rather than a government pension.  The trial court ultimately valued the pension without the WEP and awarded wife approximately 35% of the total value of the pension. Husband appealed and the Appellate Court affirmed.  The Supreme Court held that participants in the Social Security program do not have accrued property rights to their benefits, but rather expectancies or “noncontractual interests” in their benefits. Unlike pension benefits, social security benefits are not owned in the proprietary sense. Because social security benefits are not “acquired” by a spouse, then they are not marital property subject to consideration or division by a trial court. As a result, if they are not marital property, then hypothetical benefits, are not marital property and cannot be used to decrease the value of marital property available for division. In re the Marriage of Mueller, 2015 IL 117876.  The case effectively nullifies any precedent including the Third District case of In re the Marriage of Roberts, 2015 IL App (3rd) 140263 decided weeks prior to this decision.

3.         Ex-husband’s disability benefits received in lieu of retirement benefits could reasonably be considered part of his retirement plan in which ex-wife should share.   Post-divorce, Husband was injured at his job and began receiving disability benefits, although he was eligible to receive retirement benefits at that time.  Wife filed a petition with the trial court in order to receive half of the benefits because she was entitled to one-half of his retirement plan under the judgment.  Because the husband was eligible to retire and receive retirement benefits, but rather chose to receive disability, these benefits were essentially retirement.  The payments did not serve as income replacement, but as a substitute for his retirement pension. The trial court ordered him to pay his ex-wife directly since the division of disability benefits could not be accomplished by a QILDRO and the Appellate Court affirmed.   In re the Marriage of Benson, 2015 IL App (4th) 140682.

4.         First District awards custody of pre-embryos created by two unmarried persons to the egg donor despite the sperm donor’s objection to the future use of them without his consent.  In a case of first impression, the First District held that the Plaintiff, Jacob Szafranski, and the Respondent, Karla Dunston, entered into an oral contract where they agreed to create pre-embryos that Karla could use to have a biological child in the future, and that the parties did not modify this contract when they executed the medical informed consent presented to them by the doctor performing the IVF procedure.  The Court further held that Karla’s interests in having the opportunity to have a biological child outweighed Jacob’s interests because the pre-embryos were Karla’s only chance to have a biological child due to her diagnosis with lymphoma.  The trial court heard testimony from both of the parties, the physician, and an adoption and reproductive technology lawyer who had met with the parties prior to the procedure taking place. The evidence also included the details of the parties’ communications leading up to the decision by Jacob to donate his sperm and the reasons Karla underwent the procedure, including the fact that she was told by her doctor that she would not be able to have a biological child after chemotherapy.  The Appellate Court affirmed the trial court’s decision that the parties intended to allow Karla to use the pre-embryos without limitation when they formed their oral contract and further held that the medical informed consent neither modified nor contradicted the parties’ oral contract.  Therefore, Karla was awarded custody of the pre-embryos.  It is our understanding that Plaintiff will seek leave to appeal the Illinois Supreme Court.   Szafranski v. Dunston, 2015 IL App (1st) 122975.