IICLE Family Law Flash Points - October 2015

1.         Child support calculation which did not give credit for Social Security dependent benefits reversed.  In a case of first impression, the First District held a marital settlement agreement (MSA) unconscionable which calculated husband’s guideline child support on 32% of his net income ($1,942 per month) from all sources, but did not give him a credit in the amount of $1,083 per month which the wife received as his Social Security dependents benefit. The Appellate Court held the husband’s Social Security benefits received by the children were not “gratuitous” but were received by the children because of husband’s contributions to social security on his earnings.  Therefore, husband should have been given a credit of $1,083 per month towards his child support obligation.  This case also had an interesting procedural history as the parties proceeded to prove-up but stipulated on the record that husband did not agree with the trial court’s recommendation that the $1,083 not be credited towards his child support obligation, and that he could appeal that portion of the agreement.  The Court held that this orally preserved the issue for appeal.  In re the Marriage of Mitter, 2015 IL App (1st) 142695.

2.         Inherited IRA not exempt from collection proceedings to enforce a contribution award.   After an ex-wife received an award in excess of $100,000 as a contribution towards her attorneys’ fees, she issued citations to discover assets to the custodian and trustee of an IRA that her ex-husband had inherited from his mother.  The trial court determined that the IRA was exempt from collection under section 12-1006 of the Illinois Code of Civil Procedure, but the Appellate Court reversed. An inherited IRA, unlike a traditional IRA, serves no retirement purpose and it is treated completely different from an individual retirement account established by an individual which is intended for that individual’s retirement.  For example, one may never invest additional money in an inherited IRA and after a certain period of time the recipient must withdraw all of the funds, irrespective of how close he or she is to retirement.  The Court also noted that an individual does not receive favorable tax benefits on an inherited IRA.  Therefore, the Court concluded that an inherited IRA is not analogous to an individual retirement account, and is not exempt from collection proceedings.  In re the Marriage of Branit, 2015 Ill App (1st) 141297.

3.         Civil unions legally entered into in foreign jurisdictions are recognizable on the date they are entered into, not the date the Illinois Civil Union Act took effect.  A same-sex couple who entered into a legal civil union in Vermont in 2002 sought a dissolution of their civil union in Illinois in 2011, two months after the effective date of the Illinois Civil Union Act.  Because the Illinois law recognizes civil unions that were legally entered into in another jurisdiction, trial courts must recognize the creation of civil union assets at the time the civil union was entered into (in this case 2002) rather than the effective date of the Illinois statute, which is 2011.  The critical question is whether the civil union was legally recognized in another jurisdiction.  Therefore, assets acquired after a legally recognizable civil union in another jurisdiction but before the effective date of the Illinois statute, will be deemed civil union property.     In re Hamlin, 2015 Il App (2d) 140231.