IICLE Top 10 Family Law Flash Points of 2017

1.  New Case: Supreme Court follows Altman (First District) and holds attorneys’ fees earned and already paid to counsel not subject to disgorgement. In a case reconciling the First District case of In re the Marriage of Altman, 2016 IL App (1st) 143076 and the Second District case of In re the Marriage of Squire, 2015 IL App (2d) 150271 regarding whether Section 501(c-1)(3) of the IMDMA requires divorce attorneys to disgorge fees already earned by and paid to an attorney under the “leveling of the playing field” statute, the Supreme Court has followed Altman and held that attorneys’ fees earned and already paid to counsel are not subject to future disgorgement. The Court held that this interpretation is consistent with the plain meaning of the term “available.” Further, the practical considerations of requiring divorce attorneys to disgorge funds even after they had deposited earned fees into their operating accounts and used those funds to pay overhead, salaries and other expenses was significant. The Court also urged the legislature to take another look at the interim fees state and make its intentions absolutely clear and define specifically what it means by “available” funds. In re the Marriage of Goesel, 2017 IL 122046.

2.  Child Support Income Shares. With the enactment of P.A. 99-764 effective July 1, 2017, Illinois joined 39 other states in employing an income shares model when calculating child support rather than the guideline percentage of the payor’s income that has been in place since 1984.  Under the new statute, the Schedule of Basic Support Obligation, promulgated by the Illinois Department of Healthcare and Family Serices (HFS), is a critical component to the new calculation. The intent of the schedule is to utilize economic data of child rearing costs in Illinois based on the income level of both parents.  The full statute is available here:

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and the Schedule of Support Obligations is available here: 

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3.  The Illinois Supreme Court reverses Appellate Court, affirms trial court’s fee contribution award. After a post-judgment hearing, the trial court reduced ex-husband’s maintenance obligation from $35,000 per month to $27,500 per month and awarded ex-wife $125,000 in contribution to fees. The court also awarded her $35,000 in attorneys’ fees to defend the appeal that ex-husband filed on both issues. The trial court did not abuse its discretion when awarding ex-wife $160,000 in attorneys’ fees. The critical component of the decision was the Court’s analysis of its prior case, In re Marriage of Schneider and the “inability to pay” standard. When determining fee contribution, the trial court “must consider the financial resources of the parties.” The Court suggested that the Schneider holding is a gloss to be applied to this analysis, to the extent that “[t]he inability to pay standard was never intended to limit awards of attorney fees to those situations in which a party could show a $0 bank balance.” The Court concluded a party is unable to pay if, after consideration of all the relevant statutory factors, requiring the party to pay the entirety of the fees would undermine his or her financial stability. 
In re the Marriage of Heroy, 2017 IL 120205. 

4.  Arbitration award in dissolution of marriage case upheld. Parties to a divorce case agreed to resolve their property and maintenance issues through binding arbitration and entered into a Mediation/Arbitration Agreement pursuant to the Illinois Uniform Arbitration Act. The agreement stated that “in lieu of trial, the parties agree to engage in binding arbitration, which is expressly subject to the Arbitration Act.” The trial court ultimately confirmed the arbitration ruling and entered judgment over wife’s objection. The Second District upheld the trial court’s confirmation of the award after wife appealed the ruling that husband’s business was non-marital as well as the maintenance award she received pursuant to Section 504 of the IMDMA. The Arbitration Act provides for very limited judicial review and there exists a presumption that the arbitrator did not exceed his or her authority nor violate public policy. A court can overturn an arbitrator only if there is a gross mistake of fact or law and such mistake must be on the face of the award itself. 
In re the Marriage of Haleas, 2017 App (2d) 160799. 

5.  First District changes opinion on proper timing of post-judgment appeals. Former husband appealed from the trial court’s orders resolving several post-judgment matters while some issues remained pending in the trial court. The First District held that despite its previous holdings, the progeny of Supreme Court cases speaking to when an appellate court has proper jurisdiction over post-judgment appeals required it to depart from its prior rulings and apply the language of Rule 304(a). Because there were claims for attorneys’ fees still pending in the trial court and the trial court did not enter the finding required to confer jurisdiction on the Appellate Court, the appeal was dismissed for lack of jurisdiction. Rule 304(a) applies where the parties present multiple claims; the trial court enters a judgment on at least one of those claims; and that judgment on the claim is final. This holding also comports with the authority in the Second and Fourth Districts.
In re Marriage of Teymour and Mostafa, 2017 IL App (1st) 161091.