Sep 3, 2018

IICLE Family Law Flash Points - September 2018

1.  Husband not permitted to amend counter-petition for legal separation to include law division claims.  Over two years after wife’s dissolution of marriage petition was set for trial, husband filed a counter-petition for legal separation and a law division action against wife and several other defendants wherein he alleged the defendants schemed against him by divesting him of interests in marital property placed in a QPRT and a GRAT.  Less than 2 months prior to the start of the divorce trial, husband then filed a motion to consolidate the law division complaint into the dissolution proceedings. The trial court denied the motion to consolidate and the next day husband filed a motion in divorce court to stay the proceedings pending the resolution of the law division case or, alternatively, for leave to amend his counter-petition for legal separation to include the claims asserted in the law division case.  The trial court denied the motion for leave to amend and husband appealed.  The Appellate Court affirmed.  Wife would have been prejudiced had husband been permitted to add the law division claims to the dissolution proceedings as it would have delayed the divorce trial for an unknown amount of time.  The Court also noted husband failed to timely amend his pleading when he became aware of the QPRT and GRAT, as discovery in the divorce proceedings had been going on for over two years. In re the Marriage of Reidy, 2018 IL App (1st) 170054.

2.  Appellate Court lacked jurisdiction where the appeal was in the dissolution matter and the denial of motion to consolidate related to progression of a separate law division case.  Husband appealed the trial court’s denial of his motion to consolidate his law division claim against wife and several other defendants into wife’s petition for dissolution of marriage claim which was pending in a separate division in Cook County. Because the denial of the motion to consolidate was a “step in the procedural progression of the law division case, in which the trial court has not yet rendered a final judgment and which was not on appeal,” the Appellate Court dealing with the dissolution case did not have jurisdiction to hear that issue. The Court noted the substance of the motion pertained only to the law division case and did not seek relief with respect to the dissolution proceedings. The trial court was also affirmed on several other issues, including properly crediting wife with $628,807 that she owed husband on a note as part of a buy-out of business interests, which was the amount of attorneys’ fees and costs husband paid in excess of hers.  Additionally, husband waived his right to appeal the trial court’s failure to classify the corpus of a QPRT and GRAT as marital or nonmarital because he had stipulated on the record that the court would not admit any evidence pertaining the underlying value of those trusts at trial.  In re the Marriage of Reidy, 2018 IL App (1st) 170054

3.  Illinois found to be home state of children temporarily residing in Canada.   Husband appealed the denial of his motion to dismiss wife’s petition for dissolution of marriage on the grounds that the trial court erred in finding Illinois to be the children’s home state under the UCCJEA.  The parties had moved to Canada in 2015 with their child and another child was born in Canada.  In 2016, the wife and the minor child were granted permanent residency in Canada.  On a return trip to Illinois, the wife filed for divorce in Lake County.  As a result, the parties entered into a heavily negotiated Illinois temporary order which provided that the wife and children would return on a temporary basis to Canada and that the children would reside in Ontario until the beginning of July 2018.  The agreement, among other things, provided that the children’s habitual residence was the United States. Ultimately, all pending petitions were dismissed.  In 2017, wife filed another petition for dissolution of marriage and extensive litigation ensued. The Second District followed Richardson v. Richardson, 255 Ill.App.3d 1099 (1993) and held that a temporary absence from the state of Illinois is not limited to a period of six months or less pursuant to section 102(7) of the UUCJEA.  The Court noted that while the children had physically resided in Canada during the six months leading up to the filing of the petition for dissolution, the prior negotiated Illinois order memorialized the parties’ shared intent that their Canadian residency was only temporary and would only last until July 2018.  Therefore, Illinois was the children’s home state.  In re the Marriage of Milne, 2018 IL App (2d) 180091.

4.  Amendments to maintenance statute to take effect. The Illinois legislature is amending the maintenance statute once again to account for the elimination of the maintenance deduction under the new tax code for any divorce judgments entered on or after January 1, 2019. The new formula is: 33 1/3% of the payor’s annual net income less 25% of the recipient’s annual net income, not to exceed 40% of the parties’ combined annual net income and the amendments will take effect January 1, 2019. A full version of the amendments can be found here: 
http://www.ilga.gov/legislation/publicacts/100/PDF/100-0923.pdf

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