Accepted: The Constitutionality of Section 513 of the IMDMA

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Accepted: The Constitutionality of Section 513 of the IMDMA

By: Shannon M. Luschen / April 2, 2021


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Illinois is only one of a handful of states where courts may require parents to contribution to their child’s college education. This “non-minor support” is codified in Section 513 of the Illinois Marriage and Dissolution of Marriage Act and applies to those parents who are undergoing a divorce, have already been divorced or were never married. Pursuant to this statute, the court may order certain educational expenses to be paid either to the child, the other party or directly to the institution itself. These expenses include the following:


1. Tuition and fees¹
2. Housing expenses, whether on or off campus
3. Medical expenses, including medical insurance
4. Reasonable living expenses during the school year and during periods of recess
5. Costs of books and other school supplies


The provision was first enacted in 1977 and shortly thereafter, it faced its first constitutional challenge in Kujawinski v. Kujawinski. The premise of this challenge was based on the argument that divorced parents and non-divorced parents were being treated differently under the law since non-divorced parents were under no legal obligation to contribute to their children’s college expenses. In 1978, the Illinois Supreme Court found that the obligation of divorced parents to contribute to college expenses was reasonably related to a legitimate legislative purpose in “’mitigat[ing] the potential harm to the spouses and their children caused by the process of legal dissolution of marriage.’” Kujawinski v. Kujawinski, 71 Ill.2d 563, 579 (1978). The court believed that children of divorced parents inherently faced more challenges and financial hardship than children of non-divorced parents. Accordingly, the court upheld the constitutionality of Section 513.


More recently in 2019, the Illinois Supreme Court reconsidered the constitutionality of this provision again in Yakich v. Aulds. In this case, the parties were never married but had a daughter together. The mother filed a petition under Section 513 and asked that the father contribute to the daughter’s expenses. The father objected, claiming he should not have to pay since he had not been involved in the college selection process. The trial court further explained that since married parents are not obligated to pay for their children’s college, they can influence where the children ultimately go to school. Unmarried parents, on the other hand, are deprived of that influence since they are under this obligation to contribute to their children’s college. Ultimately, this issue raised equal protection concerns yet again, and the trial court found Section 513 to be unconstitutional. Further, the trial court held that the rationale behind Kujawinski was “no longer tenable” in today’s society. Yakich v. Aulds, 2019 IL 123667.


¹ Note: This expense is capped at the amount of in-state tuition and fees paid by a student at the University of Illinois at Urbana-Champaign for that same academic year.


The Illinois Supreme Court ultimately vacated the trial court’s order in Yakich stating that it had no authority to overrule and ignore the longstanding, legal precedent established in Kujawinski. While the trial court seemed to think that this precedent was outdated and no longer applied in a modern world, the Illinois Supreme Court remains the only court able to overturn its own precedent. It further stated, “[r]egardless of the impact of any societal evolution that may have occurred since we issued our decision in Kujawinski, that holding remains directly on point here, and the trial court committed serious error by not applying it.” Id at ¶ 13.


Every now and again, litigants still try and challenge the constitutionality of Kujawinski and Section 513. In 2020, the court in Budorick rejected the same argument that Section 513 violates the equal protection clause because it treats married and divorced parents differently under the law. Like in Yakich, the court also rejected the argument that “’societal changes’ since 1978” have rendered the rationale of Kujawinski – namely, the idea that children of divorced or never married parents are more disadvantaged than children of married parents and are less likely to receive financial assistance - obsolete. In re the Marriage of Budorick, 2020 IL App (1st) 190994. Further, the trial court in Budorick recognized that even if it did agree that 513 was unconstitutional for the reasons stated above, it had “no authority to depart from supreme court precedent.” Id at ¶ 86.


In the past 40+ years, the traditional idea of what qualifies as a “family” has dramatically evolved. Gone are the days where a “family” meant a married heterosexual couple and their two children. Due to these changing societal norms, it’s a wonder how the rationale behind Kujawinski remains applicable today. Nonetheless, if Section 513 or Kujawinski were ever to be overturned, that responsibility remains firmly on the shoulders of the Illinois Supreme Court. For now, at least, Section 513 and Kujawinski stand.

Fighting Like Cats and Dogs Over Cats and Dogs

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Fighting Like Cats and Dogs Over Cats and Dogs

By: Shannon M. Luschen / March 1, 2021


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People love their pets. That’s indisputable. We often hear pet owners refer to themselves as a “dog mom” or a “cat dad” – which makes sense. Pets have become more like cherished members of the family more than anything else. According to the 2019-2020 National Pet Owners Survey, sixty-seven percent (67%) of households in the U.S. or roughly 85 million families own a pet. Moreover, this number could be much higher today since the Covid pandemic began and people were forced to stay inside and work from home. Since Covid, pet ownership has continued to soar.


So, when our pets are treated more like our children, what happens to pets during a divorce?


On January 1, 2018, Illinois passed a new law that fundamentally changed how pets were treated in divorce. Prior to that date, pets were treated like mere chattel – property that had to be allocated between the parties, not unlike the division of household furniture or cars. After the new law went into effect, pets were viewed more like children in a divorce and judges were instructed to consider the pet’s “well-being” during the divorce. This “well-being” standard is very reminiscent of the “best interests” standard that is used during child custody disputes. Courts determine the allocation of responsibility and time in accordance with a child’s “best interests” or, in pet scenarios, with the pet’s “well-being.”


Specifically, 750 ILCS 5/503(n) states as follows:
(n) If the court finds that a companion animal of the parties is a marital asset, it shall allocate the sole or joint ownership of and responsibility for a companion animal of the parties. In issuing an order under this subsection, the court shall take into consideration the well-being of the companion animal. As used in this Section, "companion animal" does not include a service animal as defined in Section 2.01c of the Humane Care for Animals Act.


Illinois’ view on pets in divorce is very much a minority view in the country. In 2017, Alaska became the first state that passed the “pet custody” law, and Illinois followed suit shortly thereafter in 2018. Since that time, California joined in in 2019, and some other states (including Rhode Island, Pennsylvania and Washington D.C.) have pending legislation to enact “pet custody” laws. While the tide may be turning in our pets’ favor, the concept of “pet custody” is still in its infancy around the country.


What animals are included under this law?


Under the statute, only those companion animals who are deemed a “marital asset” apply. This means that if you adopted your dog prior to your marriage, he or she would not be subject to allocation under this statute. In addition, service animals are not included in this section (i.e., seeing eye dogs). Lastly, this statute would not cover an animal that isn’t deemed a “pet” (i.e., livestock).


How does this law work in practice?


Under the statute, courts are now directed to take into consideration the “well-being” of the pet when allocating ownership and responsibility of that pet. Not dissimilar to child custody disputes, litigants may now petition the court for temporary and permanent allocation of ownership and responsibility of the pet during the divorce proceedings. The ownership and responsibility of the pet may be jointly shared or sole – whichever the court deems to be in line with the pet’s “well-being.” Courts may hold a hearing to determine the issue, and litigants can present evidence and testimony to advance their respective positions. Further, parties can choose to determine these issues on their own through a marital settlement agreement, which would later need to be approved and entered by the court.


Illinois has finally recognized that there are strong and irreplaceable bonds that bind pet parents and their pets, which need to be protected during a divorce. With this new law, pet owners can finally advocate for their pets’ interests and well-being. Gone are the days where pets were treated like any other piece of property to be divided in a divorce. After all, you can’t truly put a price tag on the love a pet owner has for their pet, can you?


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Lessons of a Young Lawyer

By: Shannon M. Luschen / August 31, 2020



Throughout law school and before, I always knew I wanted to work and practice in family law. So, when I officially became an Illinois licensed attorney in November 2019, I started my career working as a family law associate attorney at Feinberg Sharma, P.C. At that time, I was focused mainly on trying to immerse myself into the hectic and intimidating atmosphere that was the Domestic Relations division. Somehow, everybody knew everybody here. How could I break in and make my mark?


Flash forward four months to February 2020 - I find myself sitting in a federal courtroom in a hotly contested Hague Convention case against three formidable Washington D.C. attorneys. We were fighting for our client and her two children to return home to Slovakia after they had been abducted by their father to the United States. As I sat at counsel table with Joy Feinberg and Rueben Bernick – two highly respected and formidable attorneys in their own right – I thought to myself, how did I get here? It seemed I had blinked and suddenly I was thrown into the big leagues.


When my office got the initial phone call from our would-be client in November 2019, just a short while after I became a licensed attorney, I was immediately thrown onto the case. Soon, I was sifting through thousands of pages of documents, fielding phone calls and emails from representatives at the State Department and drafting motion after motion. Despite knowing next to nothing about the Hague Convention or international kidnapping cases, I plunged into the challenge headfirst by reading everything I could about our case and the challenges before us. With the help of the more seasoned attorneys in the office, I gradually became more acquainted with the issues and was able to help prepare for the battle that undoubtedly loomed ahead of us in federal court. It would be an uphill climb – that could not be denied – but our team was resolved to climb it. And climb we did.


At every turn, it seemed like there was another curve ball we had to face – from the Judge pushing up our trial dates to our trial getting continued for 4 months due to COVID-19. What would have frozen me in my tracks only seemed to motivate and drive our fearless leader, Joy Feinberg, forwards on a relentless climb. As a young, inexperienced attorney, it was impossible not to be inspired by her leadership and dedication to our client and cause.


Ultimately, the truth prevailed, and we won our case after seven days of trial – the children were to be returned to Slovakia. After several unsuccessful last minute appeals from the father, including attempts to stay the Judgment which made its way all the way up to the United States Supreme Court, it seemed at last I could finally take a breath and reflect on the momentous journey I just embarked upon. It is not every day that an attorney, particularly a young attorney who has not even been practicing for a year, gets to partake in this kind of trial experience in federal court. Further, the lessons I learned extended far beyond the case law I researched. For one thing, I witnessed first-hand the tenacity and perseverance it requires to take a case from start to finish, especially in light of insurmountable odds and formidable opponents. Those traits are not something that is taught in law school; they can only be earned through practical experience and hard work.


Lastly, this experience helped me realize that we as attorneys never stop learning. When faced with a new and unfamiliar roadblock, we took the time to problem solve as a team by researching the questions or asking our colleagues. Whenever I felt stuck, I was reminded there was always a way to move forwards – you might have to get a little creative, but you will always find the way.

Habitual Residence: The Supreme Court Speaks

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Habitual Residence: The Supreme Court Speaks

By: Shannon M. Luschen / March 2020



For years, federal courts across the country have differed in defining the term “habitual residence” for purposes of Hague Convention child abduction cases – the first element which the left behind parent must prove when seeking to have the child returned to their home country. Some circuits, such as the 6th circuit, relied almost exclusively on the child’s experience and acclimatization to a place when determining where that child was habitually resident. See Robert v. Tesson, 507 F.3d 981, 989 (6th Cir. 2007). Other circuits, such as the 9th circuit, relied more heavily on the parent’s shared intentions of where the habitual residence of a child is. See Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001). Still other circuits, like the 7th circuit, took a hybrid approach to the two factors and looked at both the shared intentions of the parents and the child’s acclimatization to a place. See Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013). Clarifying these variations, the U.S. Supreme Court recently resolved the issue in Monasky v. Taglieri, on February 25, 2020 siding with the 7th Circuit.


Monasky and Taglieri were married in the United States and later relocated to Italy. At that point, they had no plans to return to the United States. About a year after they moved, Monasky became pregnant. The marriage, however, began to crumble as Taglieri became physically abusive towards Monasky. Monasky considered moving to the United States; applied for some jobs and inquired about divorce with attorneys. At the same time, however, the parties were still making plans to raise their child in Italy who was born in 2014.


In 2015, Monasky eventually fled to the United States with the child. Taglieri first asked an Italian court to terminate Monasky’s parental rights, and, ex parte the mother’s rights were terminated. Taglieri then filed a Hague Convention petition to return the child to Italy on the grounds that Italy was her habitual residence. The District Court decided that since the child was too young to have acclimatized to her surroundings in the United States, it relied on the last shared intention of the parents - who had lived in Italy with the child. Thus, the child was ordered back to Italy to live with the father, Mr. Taglieri. The Sixth Circuit eventually affirmed the return.



  • When an infant is too young to acclimate to her surroundings, is a subjective agreement between the infant’s parents necessary to establish her habitual residence?
  • What is the proper standard of review of a District Court’s decision of habitual residence?


The Supreme Court first considered the standard of habitual residence and whether an actual agreement between the parents on where to raise their child was a necessary element towards establishing an infant’s habitual residence. The Court stated that habitual residence is heavily fact-driven and should be determined by a totality of the circumstances. The courts should make a fact-driven inquiry that is “sensitive to the unique circumstances of the case and informed by common sense.” It held that “[t]here are no categorical requirements for establishing habitual residence – least of all an actual-agreement requirement for infants.” Although parental agreements are relevant in determining habitual residence, they are in no way dispositive across all cases.


The Court rejected Monasky’s arguments that an actual agreement was necessary for a finding of habitual residence. It stated that since there are a wide array of factors for courts to consider when determining habitual residence other than an actual agreement, this bright-line rule is unnecessary. It also rejected Monasky’s arguments that this requirement would protect young children from domestic violence because it would leave many children without a habitual residence and thus unprotected by the Hague Convention. The Court explained that domestic violence is an issue that should be more fully explored in the custody determinations after the child is returned. Further, the Hague Convention already provides protection from the problem of physical abuse in its Article 13(b) defenses which would prevent the return of the child based upon that defense.


For the second inquiry, the Court determined that the appropriate standard of review is clear-error review. This is based on the fact that the habitual residence inquiry is a mixed question of law (what is the appropriate standard for habitual residence?) and fact (was the child at home in the particular country at issue?).


The Supreme Court refused to disturb the decision to return the child to Italy and thus affirmed the 6th Circuit’s judgment. Ultimately, this decision now allows courts across the United States to better handle Hague Child Abduction Petitions with uniformity and fairness. The clarity of the standard upon which the determination should be made is set forth for every circuit to follow. Uniformity better serves the prime goal of the Hague Convention to allow quicker determinations and ultimately to resolve these most difficult matters.


Edited by Joy M. Feinberg, 2020

The Second Time Around Could Ring Your Bell: The Dangers of Child Support for the Non-Owing Spouse

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The Second Time Around Could Ring Your Bell: The Dangers of Child Support for the Non-Owing Spouse

By: Shannon Luschen / October 28, 2019



Beware: If you are married to someone who pays child support, your income now can be combined with your spouse’s income for purposes of calculating your spouse’s child support obligation. Illinois has ventured into new territory with In re Marriage of Rushing. In Rushing, the appellate court affirmed a trial court child support decision that calculated child support by combining the separate net incomes of the father and his current wife and then applying the somewhat new Illinois guidelines to this combined total.


Here are the facts: Mr. Rushing had not paid his reduced child support obligation of $200/mo from 2010 up through the time of trial in mid-2016. He was off to a bad start. Mr. Rushing claimed that the parties had agreed to terminate his child support entirely – something his former wife admitted. {This oral agreement was never entered as a written court order. Even the admission of the oral agreement by the ex-wife was insufficient to protect Mr. Rushing from having to pay the accumulated unpaid child support arrearage – consistent with long-held case law in this area.} He reported monthly expenses that far exceeded his monthly income – a scenario that requires an explanation or suggests an additional source of income from somewhere else, such as his current wife. Mr. Rushing’s current wife earned over $300,000 annually, enabling him to live well while ignoring the lifestyle of his children or their household. The court determined that the father had ample resources from which to pay his child support obligation, including his current wife’s income, in its calculations of child support. Mr. Rushing’s claim that he and his wife separated (albeit while living in the same home) was insufficient to change the inclusion of her income in this calculation; however, if there was an actual separation or divorce, Mr. Rushing was free to bring these matters to the attention of the court at the time such facts arose. See In re Marriage of Rushing, 2018 IL App (5th) 170146.


The old law: Traditionally, Illinois courts held that the financial status of a new spouse may not be considered when calculating a child support obligation. See In re Marriage of Keown, 225 Ill. App. 3d 808, 813 (Ill. App. Ct. 1992). The long-standing justification for this rule was that new spouses are generally under no legal obligation to financially support their step-children. Illinois law even states that:


“[n]either husband or wife shall be liable for the debts or liabilities of the other incurred before marriage, and (except as herein otherwise provided) they shall not be liable for the separate debts of each other, nor shall the wages, earnings or property of either, nor the rent or income of such property, be liable for the separate debts of the other.” 750 ILCS 65/5 (West 2014).


Despite this, courts have held that the financial status of a current spouse could still be considered when determining “whether payment of support would endanger the ability of the support-paying party and that party’s current spouse to meet their needs.” In re Marriage of Deike, 381 Ill. App. 3d 620, 627 (2008). This notion of equity allowed for courts to consider how a new spouse’s income could “free-up” the support-paying spouse’s income to the extent that that spouse could then pay more of his or her own income as child support. Courts then use these equitable principles to deviate from child support guidelines after finding, among other things, that the child support paying party’s “resources and needs” warranted such a deviation. 750 ILCS 5/505(a)(2)(b) (West 2016). “Resources,” as applied here, has been long construed as a broad term that could encompass all of the money or property to which a parent has access, including a new spouse’s income or property. See In re Marriage of Drysch, “314 Ill. App. 3d 640, 644-45 (2000). Under this theory, the income of a new spouse can be considered when setting a child support obligation to the extent that it warrants a deviation from the guidelines that would have been applied against the spouse’s separate income for support purposes.


So long as equity requires it, courts may now require spouses to financially support their step-children to some extent. Spouses married to those paying child support need to be wary of this trend.