IICLE Family Law Flash Points - September 2023

Denial of Intrastate Relocation Reversed by Appellate Court

In Burmood v. Anderson, 2023 IL App (2d) 230092, the mother sought to relocate the minor child from the Naperville area to Galesburg, which was denied by the trial court. The appellate court reversed. At trial, the guardian ad litem testified that he believed the loss of weekly contact between the father and the minor child would adversely affect their relationship and that a parenting schedule could not be fashioned that would be in the child’s best interests because there could be no parenting time for the father other than weekend parenting time. The trial court’s decision was against the manifest weight of the evidence because the evidence showed that the mother’s financial position would be improved due to more affordable housing and assistance from her extended family in Galesburg. The father’s failure to keep current in his child support for over a year made it difficult for the mother to make ends meet in the Naperville area. While the father’s weekday parenting time was significantly reduced (except during the summer), this did not outweigh the other factors, which weighed in favor of the child’s life being improved with a move to Galesburg. The appellate court found fault with the trial court’s disregard of the father’s child support arrears and his impeached testimony at trial that showed he was earning more income than he had disclosed. It is important to consider whether an objecting parent is financially supporting the child he or she wants to prevent from relocating; if the objecting parent is not, and the petitioning parent’s request to relocate is so that he or she can improve the financial condition of the minor child, that should be afforded additional weight.

Wife Entitled to Maintenance Despite Waiver in Premarital Agreement

At issue on appeal in In re Marriage of Amyette, 2023 IL App (3d) 200195, was whether the “undue hardship” provision of the Illinois Uniform Premarital Agreement Act, 750 ILCS 10/1, et seq., applied, which would preclude enforcement of the wife’s waiver of maintenance in the premarital agreement. The wife entered into the marriage in 1996 with a high school degree earning $25,000. She testified that during the marriage the husband did not support her advancing her education so she could increase her earning potential. At the time of divorce in 2019, she earned $35,000 and had some significant health issues. The undue hardship provision allows the court to award maintenance despite a waiver of maintenance in a premarital agreement if there are circumstances not reasonably foreseeable at the time of the execution of the agreement. The husband’s main argument was that it was reasonably foreseeable that the parties would get divorced, which the court held lacked merit. The premarital agreement statute focuses on the totality of the circumstances at the time of the divorce and whether those circumstances were reasonably foreseeable at the time the parties executed the agreement. There was sufficient evidence presented that the wife’s circumstances at the time of divorce were not reasonably foreseeable at the time the agreement was executed, and the trial court’s determination was not against the manifest weight of the evidence.