Top Ten Family Law Flash Points of 2019

6.         Northern District of Illinois Bankruptcy Court clarifies application of automatic bankruptcy stay.  The ex-wife of a chapter 13 debtor sought to lift the automatic stay in bankruptcy court so she could seek a contribution to college expenses by her ex-husband.  The bankruptcy court denied the motion as unnecessary.  Section 362(b) of the bankruptcy code provides a list of exceptions to the automatic stay, which include, among many items, a modification of an order for domestic support obligations, which includes a debt in the nature of alimony, maintenance or support of such spouse, former spouse, or child of the debtor.  There are only two important types of domestic relations proceedings which are barred by the automatic stay: (1) the division of marital property that is property of the estate; and (2) proceedings to collect on a domestic support obligation from property of the estate. View Judge Doyle's opinion here. 

7.         Trial court reversed for reducing child support due to involuntary termination which led to payor’s retirement.  Father petitioned for a reduction in child support after he was terminated from his executive position at the age of 64.  The trial court reduced his support payment from $3403 per month to $1700 which was an upward deviation from guidelines due to father’s wealth.  Mother appealed arguing that there was no substantial change of circumstances and that the trial court erred by not including $83,000 in deferred compensation and $400,000 as a retirement withdrawal as income.  The Appellate Court reversed holding that while retirement generally equals reduced economic means, father’s $2.585 million in investments, three homes, and a $60,000 per year travel budget, demonstrated that his retirement did not substantially change his ability to pay child support for his minor child.  In re Marriage of Verhines and Hickey, 2018 Il (2d) 171034.

8.         Trial court entitled to review maintenance award even though original unallocated support period had passed. In a post-judgment action, wife filed a petition for review of maintenance weeks after the 60 month term for husband to pay unallocated support passed.  The language in the MSA provided that the unallocated support was reviewable.  Husband filed a motion to dismiss arguing that wife was not entitled to additional maintenance because she did not file her petition for review with the 60 months.  The trial court denied the motion to dismiss and ordered permanent maintenance retroactive to the date of filing.  The Appellate Court affirmed.  The language of the MSA clearly provided the support was reviewable and nothing in the Agreement prohibited wife from seeking the trial court from considering the extension of the maintenance payments.  In re Marriage of Wojcki, 2018 IL App (1st) 170625.

9.         Premarital agreement found to be valid and enforceable based on limited hearing focused solely on issue of voluntary waiver of further disclosure provision of Premarital Agreement Act.  Husband contested the validity of a premarital agreement.  He thought that the purpose of the document was to earmark wife’s family business assets as her non-marital property, but wife took the position that the agreement resolved all classification issues of the estate.  The trial court limited the issues both for discovery and hearing to whether husband voluntarily signed the document and whether he voluntarily waived further disclosure.  Such a limitation was within in its discretion.  A waiver can be voluntary even where the other party has disclosed no assets at all.  The Court noted that the waiver language in the agreement tracked the statutory language in the Premarital Agreement Act and therefore upheld the agreement.  In re Marriage of Solano, 2019 IL App (2d) 180011.

10.       Trial court reversed on issue of allocation of SSDI benefit received by minor child.  The trial court ordered it was inappropriate for either party to pay child support to the other based upon a 50/50 parenting schedule, the parties’ respective net incomes, and maintenance payable from wife to husband.  The court did not include the monthly SSDI dependent benefits husband received on behalf of the minor child in husband’s gross income when reaching such a conclusion. Instead, the benefit was deposited in a joint account for the payment of certain child-related expenses.  Husband appealed and sought to retain the total SSDI benefit, subject to a 50% obligation toward the additional child’s expenses. The Third District reversed.  Because the SSDI dependent benefit is generated through the labor and earnings of the husband and is intended for the current maintenance of the child, the benefit was required to be included in the father’s gross income for purposes of calculating child support.  There is no statutory authority which allows a trial court to order the benefit to be placed into a separate account for the payment of expenses.  In re Marriage of Benyon, 2019 IL App (3d) 180364.