Latest Chicago Divorce and IL Family Law Case News
Attorney M. Scott Gordon comments on Chicago Divorce and Family Law cases in Illinois, as well as current developments of interest. If you have questions regarding Divorce in Chicago or need to speak to a Family Law Attorney contact Gordon & Perlut, LLC today.
August 20, 2016
Illinois Supreme Court Again Refuses To Extend Property Rights to Unmarried Couples
In Blumenthal v. Brewer, the Illinois Supreme Court refused to give property rights to unmarried cohabitants. Only our Supreme Court or the legislature can change this public policy governing the rights of parties in non-marital relationships.
June 29, 2016
Illinois Domestic Violence Act update / possible amendment. House Bill 6109 has passed both houses of the Illinois legislature and has now been sent to the Governor. If signed, it would authorize the Illinois Supreme Court to adopt rules to establish a pilot program for electronic filing of petitions for temporary orders of protection and the issuance of those orders by audio-visual means. Its intent is to accommodate litigants for whom attendance in court would be an undue hardship or risk of harm to them.
May 3, 2016
A new case handed down by the Illinois Court of Appeals demonstrates (again) why everyone needs legal counsel in a divorce and that they should carefully consider any agreements. The parties were originally married for 28 years, divorced, and later remarried. The wife filed for divorce a 2nd time after only 6 months. In the 2nd divorce, the husband agreed to include the terms of a “postnuptial agreement” the parties had previously signed. 5 months later, he filed a motion to vacate the judgment, arguing that the parties’ postnuptial agreement was unconscionable. In the agreement, the husband had agreed to permanent maintenance. The Appeals Court denied the husband’s request, rejecting his claim that he felt “pressured” to sign an agreement to save his marriage or to avoid losing custody of the parties’ child. The Court held that the agreement was “not substantively unconscionable” and that although the permanent maintenance provision was very favorable to the wife after only 6 months, the husband received several valuable assets that he might not have received had the case been litigated. In re Marriage of Labuz, 2016 IL App (3d) 140990 (May 3, 2016)
April 8, 2016
Are the proceeds from a wrongful death lawsuit subject to child support? Yes. In a case just handed down by the Illinois Court of Appeals In Re Marriage of Fortner), the Court held that the proceeds from such a lawsuit received by the husband (from his own father’s death), increased the husband’s financial resources, and thus was a “material change in circumstances” justifying a one-time upward deviation from guideline amount of child support. The court stated that the proceeds from the lawsuit constitute “income”. In light of the broad, inclusive definition of income in the Dissolution Act, damages for pain and suffering, disability, and emotional grief and loss from wrongful death settlement are income for purposes of child support.
February 16, 2016
In a new maintenance (alimony) case decided by the Illinois Court of Appeals (In re Marriage of Roberts), after a 37-year marriage, a public school teacher (Petitioner) filed for divorce marriage from a disabled pharmacist (Respondent). Here, the appeals court reviewed the trial court’s refusal to order maintenance for the Petitioner. Although the trial court properly refused to consider the Respondent’s Social Security benefits when dividing the parties’ property, the trial court should have considered the Respondent’s income (including Social Security benefits) in determining a maintenance award for the Petitioner. At trial, the Court was presented evidence that when Petitioner retires she will be unable to support herself, while Respondent will have the ability to pay maintenance. Therefore the trial court should have reserved the issue of maintenance until Petitioner’s impending retirement, at which time the trial court must consider the value of Respondent’s Social Security benefits in determining the amount of maintenance that Petitioner should receive.
February 4, 2016
How much “weight” must a Judge give to the opinion of a child and the allocation of parenting time? In a recent case (In re Marriage of Adamson), a Judgment of dissolution was entered 6 years ago granting the parties joint custody and setting forth an agreed parenting schedule. When the children were 13 and 8, the mother filed a Petition to Modify the father’s parenting time. The trial court concluded that changing the schedule was not in the children’s best interest, even though the older child stated a preference for more time with his mother. The mother filed an appeal, but the appellate court upheld the trial court’s decision. Why? The Court of Appeals stated that while a mature child’s preference as to custody should be given considerable weight when based on sound reasoning, a court is not precluded from finding that a child’s preference is not in the child’s best interest. Here, the trial court felt the child’s description of preference described mere normal teenage/parent behavior and misunderstandings.
February 2, 2016
Effective January 1, the only method (or basis) for divorce in Illinois is a “no-fault” state. Previously, while you could file a no-fault divorce action, you also had the option of filing a divorce based upon fault. That has now been abolished. How does this affect you? Not very much. Under the previous statute with fault, a Court still had no authority to award you more property based upon fault. However, the change will hopefully allow couples and the Judge to focus on issues the Court can address, namely, the children, finances, support, and property division.
February 1, 2016
In a Child Custody dispute, the Court may appoint an expert to give an opinion as to which parent is more suitable to be named the custodian. What if a parent disagrees with that opinion after the divorce/custody case is completed? Does the aggrieved parent have a right to sue the expert for malpractice? In a new case before the Illinois Court of Appeals (Heisterkamp v. Pacheco), a Plaintiff filed such a lawsuit against a clinical psychologist who was the court-appointed expert in the Plaintiff’s divorce proceeding. In that case, the expert diagnosed the plaintiff with “obsessive-compulsive personality” and he ultimately lost custody. In the lawsuit, he alleged the diagnosis deviated from the proper standard of care. The Appeals Court here ruled that the expert acted at the direction of the court in dissolution proceedings and is entitled to absolute immunity regardless of whether the direction given was proper under the Illinois divorce statute.
January 29, 2016
A new case issued by the Illinois Court of Appeals gives guidance to Judges once they make a finding that abuse has occurred. In the case of Sanchez v. Torres, the Court heard an appeal from a petitioner who had sought a 2 year “plenary” order of protection. After the evidentiary hearing, the trial court found abuse. The appeals court held that a court may not decide instead to then issue a civil restraining order because that type of order does not have the same effect or rights as an Order of Protection. The Illinois Domestic Violence Act mandates the issuance of an order of protection once a victim makes a showing of abuse.