Dec 1, 2015

Top Ten Family Law Flash Points of 2015

Donald C. Schiller & Michelle A. Lawless

1. New Illinois Marriage and Dissolution of Marriage Act and Parentage Act to take effect January 1, 2016. While there are significant changes to both statutes, some of the significant highlights are as follows:

There is one ground for dissolution of marriage – irreconcilable differences.

A court will no longer award custody or visitation, but rather allocate parental responsibilities and parenting time.

Parental responsibilities are broken into categories such as education, health, religion and extra-curricular activities and the court can allocate the specific responsibilities either jointly or solely to one parent.

Parents who reside in Cook, DuPage, Kane, Lake, McHenry and Will counties may move up to 25 miles from his or her current residence without leave of court. A parent in any other county may move up to 50 miles without leave of court. Parents can move up to 25 miles across state lines without leave of court.

Courts must issue judgments after trials on dissolution of marriages no later than 60 days after the close of roofs.

Courts will have discretion to use one of several different dates to determine the value of assets at a dissolution of marriage trial.

College education expenses under Section 513 are capped at what is charged at the University of Illinois at Champaign-Urbana unless good cause is shown.

This list is not exhaustive of the comprehensive re-write and is intended only to illustrate a limited selection of the new amendments.

2. 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. 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. Obergefell v. Hodges, 576 U.S. ______ (2015).

3. Illinois Supreme Court holds social security benefits are not marital property subject to consideration or division in a divorce case. 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. 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.

4. Illinois Supreme Court holds that equitable adoption doctrine does not apply to child custody proceedings. The Supreme Court declined to extend the concept of equitable adoption to a child custody determination. After a lengthy discussion on functional parent theories and the applicability of the doctrine of equitable adoption to a probate case and a custody case, the Court concluded that the doctrine, which allows a person who was accepted and treated as a natural parent or adopted child, and to whom adoption typically was contemplated but never performed, to share in the inheritance of a foster or stepparent. However, this same analogy is not appropriate in custody cases. In re Scarlett Z.-D., 2015 IL 117904.

5. 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 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. Jacob has filed a Petition for Leave to Appeal with the Illinois Supreme Court. Szafranski v. Dunston, 2015 IL App (1st) 122975.

6. Retained earnings in a Subchapter-S corporation held to not be includable when calculating net income for child support. In a case of first impression, the First District held that retained earnings of a Subchapter S corporation were properly excluded when the trial court calculated father’s net income under Section 505 of the IMDMA under the specific facts of the case. Trial courts should engage in a case-by-case, fact-specific analysis to determine whether retained earnings of a corporation should be imputed to the sole or majority shareholder for purposes of calculating child support. The factors to be evaluated are: (1) the extent of the obligor’s ownership share in the corporation; (2) the obligor’s ability to decide whether corporate earnings should be retained or distributed; (3) the corporation’s history of retained earnings and distributions, in comparison to post-divorce corporation activities; (4) whether the retained earnings are excessive; and (5) whether there is evidence that income is actually being manipulated. In re the Marriage of Moorthy and Arjuna, 2015 IL App (1st) 132077.

7. Award of an equal parenting schedule not an abuse of discretion. The Appellate Court upheld a trial court’s award of joint custody and a 50/50 parenting schedule after a full evidentiary hearing where the evidence showed that the parties acted with an extraordinary level of cooperation. The Court did acknowledge that 50/50 arrangements have traditionally been viewed with caution, but that based on the facts of this particular case the court did not abuse its discretion in fashioning such a schedule because of the level of cooperation between the parents and because they lived within close proximity to each other. In re the Marriage of Perez, 2015 IL App (3r) 140876.

8. Finding that a pleading is not an emergency is not a substantial ruling on the merits which would prohibit a substitution of judge as a matter of right thereafter. The Appellate Court reversed a trial court’s decision to deny a motion for substitution of judge (SOJ) as a matter of right after the trial court entered an order declaring that ex-husband’s Emergency Verified Petition for Preliminary Injunction to Enforce Joint Parenting Agreement and to Preserve Status Quo was not an emergency and set a briefing schedule and a future hearing date. The Court held that an order finding the emergency petition was not an emergency did not rise to the level of expressing his opinion on the relief prayed for in the petition and therefore, no substantial ruling on the merits was made. All orders entered after the denial of the SOJ as a matter of right were therefore void. In re the Marriage of Crecos 2015 Ill App (1st) 132756.

9. UCCJEA home state jurisdiction does not exist until birth of child. In a Parentage action, father filed a claim for paternity, custody and visitation in Illinois prior to the birth of the minor child. Mother was residing in Colorado at the time he filed his petition and mother thereafter filed a competing petition in Colorado. The Illinois trial court denied mother’s motion to dismiss the custody portion of father’s petition utilizing the significant-connection analysis under Section 201(a(2) of the UCCJEA. The Appellate Court reversed. The home state determination of a child must be deferred until the child’s birth and the birth state will ultimately become the home state of the child. UCCJEA jurisdiction does not exist prior to a child’s birth. In this case, Colorado had proper jurisdiction over the custody of the child because during the case the child was born there. Fleckles v. Diamond, 2015 IL App (2d) 141229.

10. Domestic partner allowed to pursue claims of partition, unjust enrichment, and imposition of a constructive trust against former domestic partner. The First District, by allowing a domestic partner to sue her former partner of 26 years under several legal theories including partition, imposition of a constructive trust and claims of unjust enrichment, declined to follow the 1979 Supreme Court case of Hewitt v. Hewitt, 77 Ill.2d 49 (1979) which stood for the proposition that recognizing mutual property rights of unmarried cohabitants would violate the statutory ban on common law marriage. Because the domestic partners in this case held themselves out as committed partners, bought a house together, raised three children, commingled their assets, and divided up their domestic responsibilities and career objectives between themselves, the Court held Respondent should be allowed to pursue the same common law claims which are available to all people. Blumenthal v. Brewer, 2014 IL App (2d) 132250.

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Top Ten Family Law Flash Points of 2015

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