Accepted: The Constitutionality of Section 513 of the IMDMA

By: Shannon M. Luschen / April 2, 2021

 

 

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

By: Shannon M. Luschen / March 1, 2021

 

 

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?

Diversity Thoughts

By: Jason Pica, Law Clerk / February 23, 2021

 

 

The political ascendancy of Vice President Kamala Harris has released hope in women across professions in which women and women of color are often underrepresented. While all Americans and women in particular are still assessing the meaning of a woman in the White House, Feinberg Sharma, P.C. celebrates the promotion and recognition of women in all professions, especially in the legal field.

 

At Feinberg Sharma, P.C. – a firm founded by two distinguished international leaders in divorce and family law – we understand the importance of advancement and continued education of women in law. Likewise, we recognize the paramount importance of diversity and inclusion in the legal profession.

 

Before her rise to the White House, Vice President Harris was a District Attorney, Attorney General, and a United States Senator. Similar to Vice President Harris – the first woman and the first Black and Indian American to be elected vice president – our esteemed partner, Molly A. Sharma, has quickly risen to the top ranks of divorce and family law practitioners.

 

Recognized as a Crain’s Chicago Notable Minority Lawyer, Notable Women Lawyer, and Leading Lawyer, Molly is a savvy, accessible, aggressive, and sensitive advocate for her clients facing the challenges of divorce. Molly represents business owners, doctors, lawyers, athletes, and other individuals of high net worth who are grappling with the complex financial implications of ending their marriage.

 

Molly has a special expertise in international child jurisdiction disputes, known as Hague convention cases and is recognized as an expert in these complex matters. Often, she lectures at international conferences on subjects about these Hague disputes. In these cases, Molly acknowledges and employs her Indian culture for the amelioration of the attorney-client relationship and the advancement of the case.

 

We also acknowledge Mr. Cholleti Vinay Reedy, who became the first Indian American presidential speechwriter for President Biden’s inauguration. With roots in Telangana, India, Mr. Reedy was also recently appointed as the Director of Speechwriting for President Biden.

 

Whether in the spotlight like Vice President Harris or thriving behind the scenes like Director Reedy, both acclaimed professionals hold historic significance as the first Indian Americans in their respective positions. While we are all masters at our profession and leaders in our chosen field, Feinberg Sharma, P.C. takes this moment in history to honor all women, women of color, and profusely applaud Molly’s contributions to divorce and family law.

 

With a standing ovation to all deserving accolades, we look forward to helping you during your time of need.

 

- Feinberg Sharma, P.C.

Why We Mentor Our Associates

By: Joy M. Feinberg and Gia M. Conti / January 28, 2021

 

 

In a world where everything is going digital, mentorship in the law remains relevant and continues to evolve. Mentoring is more than just teaching someone how to be a “good lawyer.” Feinberg Sharma mentors the attorneys in our firm so that they take pride in themselves, their work product, and our firm.

 

Beginning with our younger associates and law clerks, we mentor internally and encourage associates to seek additional guidance outside of our firm. Internally, we train our associates on how to think critically – which involves learning the law from the bottom up, not just reading the statute. We want our attorneys to understand how laws are crafted such that they will eventually want to take part in bar associations in order to provide valuable input regarding the legislation that governs our day-to-day practice.

 

Mentored Associates Become Respected Members of the Family Law Community
Being a well-respected member of the family law community is just as important as understanding the law. We guide our associates on how to mingle with their peers and the judiciary. Our associates learn the importance of knowing their colleagues in a collegial setting and how it may ultimately enhance their ability to foster creative and unique resolution.

 

We want our lawyers involved in educational endeavors: from attending programs to writing and speaking. We also support our attorneys to become involved in non-legal organizations, including local and national charities. The firm pays for our lawyers to attend full-day seminars and lengthier programs that focus on specialized issues such as negotiation or trial skills. All of the firm’s lawyers write blog posts on topics they are passionate about or that are assigned to them so that our website has fresh, salient content.

 

Mentoring Helps to Turn Individuals into a Team
Together, the sum is greater than any individual part. We have an open-door policy so that all lawyers in the firm are available to learn from each other. Our senior lawyers routinely advise other lawyers about what worked, what did not work, what they discovered about certain issues, and what they heard or learned on a case or from a judge.

 

We foster an environment where everyone is part of a team or “firm family.” No matter how busy our schedules, we all check in on one another from time to time. If one attorney is in the weeds, we all come together to pitch in. There is an unwritten understanding that the relationship is mutual and reciprocal.

 

Part of being a well-respected and talented family law attorney includes learning from lawyers outside your own firm. Joy had such a relationship with a very senior lawyer who is just now embarking upon retirement. He remains one of the best trial lawyers in our industry. She has tried cases against him and can say they each bear the scars of their encounters.

 

During a recent trial in Federal Court, opposing counsel – with no notice – advised that they would be producing their overseas expert within one hour for examination. Joy had seen his report four days prior and made a series of notes covering four categories of cross-examination. As her questioning began, Joy realized she had taken on the style of her former opposing counsel. “I was channeling him,” she says. “As I progressively took apart the opposing expert, I said in my head, ‘We’re doing this together.’ I could hear him doing this!”

 

After the remote witness dejectedly left the witness chair in Europe, our team was beaming. At the conclusion of the trial, Joy called her colleague and told him the story. “He said it was the best gift he had ever been given: to know that I felt he had been a mentor to me,” says Joy. “The feeling was mutual. I was grateful for lessons learned from this master of the courtroom because he had elevated my practice.”

 

Mentoring is Emotionally and Financially Rewarding
Once associates and partners take pride in themselves, their sense of business development comes somewhat naturally. Our attorneys understand that their behavior reflects on our firm – whether in a pre-trial or shopping at their local grocery store. Our firm conducts quarterly “lunch and learns” that involve questionnaires and check-ins to promote business development among our associates. Encouraging business development among younger attorneys creates an invaluable sense of empowerment that is of little cost to a firm but pays big dividends – both immediately and into the future.

 

There is nothing more rewarding than asking a senior lawyer for help. Similarly, there is nothing more rewarding than seeing how their help has impacted another attorney.

 

Mentorship is a win-win for everyone – including our family law clients! – and a true learning experience for all involved. We have so many talented colleagues. It is important that we all learn from one another’s diverse backgrounds and continue to teach and support one another.

 

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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.

The Contractual Approach to Assisted Reproductive Technology Litigation

By: Jennifer S. Tier / April 1, 2020

 

 

Current laws fail to protect parties making agreements relating to their frozen embryos. Courts using the contractual approach to Assisted Reproductive Technology litigation must carefully examine these so-called agreements to determine whether they are valid in a divorce context.

 

In 2002, there were approximately 346,000 frozen embryos in the United States1. By 2017, the number of frozen embryos grew to approximately 1,000,0002. People are turning to assisted reproductive technologies (ART) at an exponential rate. Yet, as so often happens when technology accelerates at lightning speed, the law is slow to catch up.

 

Take the scenario of a married couple who have trouble conceiving and use in vitro fertilization (IVF). The couple is under extreme stress, both emotionally and monetarily. At the fertility clinic, they are given a stack of paperwork six inches thick. One of the forms is a lengthy questionnaire about the disposition of any remaining frozen embryos. One of the questions states “In the event the patient is divorced any remaining frozen embryos will, A) Be awarded to Wife, B) Be awarded to Husband, C) Be donated to research, D) Be donated to another couple, or E) Be destroyed.” The Wife fills out the form; checks the box that the embryos will be awarded to her; and the Husband signs. The couple has no actual discussion about this issue nor do they receive any legal explanation or advice.

 

The couple successfully has one child and six remaining frozen embryos. Then they get divorced. Husband is adamant that he does not want Wife to be able to use the remaining frozen embryos as he does not want more children with Wife. Wife wants more biological children. She argues that because Husband signed the form, she should be awarded the embryos. Further, Wife argues Husband would not be the legal “father,” although the form makes no mention of the conditions that would determine whether Husband is the legal father.

 

The Contractual Approach to Assisted Reproductive Technology Litigation (ART)
State courts are trending towards a “contractual” approach for deciding the complex problems presented by this scenario. Under this common approach, Wife would be awarded the embryos because the parties had an agreement (the form where Wife checked a box at the fertility clinic). In fact, a similar scenario is presently before the Supreme Court in the case of Bilbao v. Goodwin. In adopting this contractual approach, courts have shown a preference toward honoring agreements between parties.

 

Courts want to encourage people to have serious and lengthy discussions about these highly personal issues. Specifically, in Kass v. Kass, 91 N.Y.2d, 544, 5673 N.Y.S.2d 350, 696 N.E.2d 174, 180 (1998), the court noted:

 

“… parties should be encouraged in advance before embarking on [in vitro fertilization] to think through possible contingencies and carefully consider their wishes in writing. Explicit agreements avoid costly litigation in business transactions. They are all the more necessary and desirable in personal matters of reproductive choice, where the intangible costs of litigation are simply incalculable…to the extent possible, it should be the progenitors – not the State and not the court – who by their prior directive make this deeply personal life choice.”

 

Courts in California, New York, New Jersey, Tennessee, and Illinois have all made rulings consistent with the contractual approach to ART agreements. The trend is that these very personal decisions should be made by the parties involved – not the court.

 

Should ART Agreements Be Binding in Divorce?
In theory, honoring the parties’ ART agreements seems like a sensitive and practical approach to resolving such weighty emotional issues. But is simply having an “agreement” enough? What if the parties are not having serious discussions about the implications of their decisions because they are highly emotional or rushed because of medical concerns? What if the parties are filling out hundreds of pages of forms? What if the forms are not explicit and do not address fundamental issues like whether the Husband will be treated as the legal father of any resulting children in the event of a divorce?

 

It is unlikely that a layperson could truly comprehend the complex legal implications of everything they must sign when seeking IVF. Courts are trending toward the contractual approach, but so far, they have not delved deeper to discuss whether parties should meet certain requirements to create a valid agreement.

 

This is in stark contrast to laws surrounding gestational surrogacy contracts. Many states have adopted statutes obliging parties to meet a long list of requirements to have a valid surrogacy contract. For example, statutes require the parties to be represented by independent legal counsel, to notarize signatures, and for two witnesses to sign the agreement. The list of requirements can be lengthy and onerous.

 

Legislatures have reacted swiftly to enact these comprehensive gestational surrogacy laws after several high-profile cases received widespread media attention. Unfortunately, there has been no such widespread attention to the disposition of frozen embryos. The lack of guidance is all the more striking because IVF is so much more common than gestational surrogacy.

 

State Courts Must Weigh-In on What Constitutes a Valid ART Agreement
Legislatures and courts should treat the disposition of frozen embryos more like surrogacy agreements and put safeguards in place to protect the populace. Although this would place a greater burden on parties using IVF, it would also ensure that the most fundamental rights of the parties are protected: the right to be – or not to be – a parent. Parties should be advised of the consequences of their ART agreements regarding the disposition of embryos upon divorce and whether the Husband (or partner) would be the legal parent of any resulting children after divorce.

 

Bright-line laws could also limit litigation. For example, the Uniform Parentage Act (Uniform Law Commission 2017) suggests the following law: “Section 706(a). If a marriage is dissolved before placement of eggs, sperm or embryos, the former spouse is not a parent of the resulting child unless the former spouse consented in a record that if assisted reproduction were to occur after a divorce, the former spouse would be a parent of the child.” This Act only governs whether a spouse is considered a parent and does not dictate who may control embryos after a divorce. Nonetheless, such legislation provides much-needed guidance to couples considering IVF.

 

Until state legislatures actually change the law, if courts are to use the contractual approach to Assisted Reproductive Technology litigation, then they have a responsibility to look at parties’ so-called agreements more closely. Statutes are often a codification of case law. Therefore, State courts should start to weigh-in on what constitutes a valid agreement over frozen embryos rather than stopping their inquiry as soon as they see a signed form with a checked box. This would ensure parties meet the Kass court’s goal that parties have serious and lengthy discussions over this “deeply personal life choice.”

 

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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.

 

FACTS
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.

 

ISSUES

• 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?

 

OPINION
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

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.

New Year, New Divorce Laws

By: Madilyn Keating-Ellsworth, Esq. / January 10, 2019

 

 

Starting January 1, 2019, more than 250 new laws became effective in Illinois, including significant changes to Illinois’ divorce laws. This article summarizes the major changes to the Illinois Marriage and Dissolution of Marriage Act taking effect this year:

 

I. Maintenance (750 ILCS 5/504)

As of January 1, 2019, maintenance is no longer tax-deductible to the payor spouse, and no longer includible in the gross income of the recipient spouse. In light of this new federal tax reform, numerous changes were made to Illinois’ maintenance statute effective January 1, 2019, and are summarized below:

 

Maintenance Barred if Award is Not Appropriate (750 ILCS 5/504(b-1))
Unless the court finds that a maintenance award is appropriate, the court shall bar maintenance as to the party seeking maintenance regardless of the length of the marriage at the time the divorce action was commenced.

 

Guideline or Non-guideline Maintenance Awards (750 ILCS 5/504(b-1))
Only if the court finds that a maintenance award is appropriate, shall the court order guideline maintenance or non-guideline maintenance. However, if the application of guideline maintenance results in a combined maintenance and child support obligation that exceeds 50% of the payor’s net income, the court may determine non-guideline maintenance, non-guideline child support, or both.

 

Guideline Maintenance Awards (750 ILCS 5/504(b-1)(1)(A))
If the parties’ combined gross annual income is less than $500,000, and the payor has no obligation to pay child support or maintenance or both from a prior relationship, the amount of maintenance shall be calculated by taking:33 1/3% of the payor’s net annual income, minus 25% of the payee’s net annual income. The amount calculated as maintenance, however, when added to the net income of the payee, shall not result in the payee receiving an amount that is in excess of 40% of the combined net income of the parties.

 

Modification of Maintenance Orders Entered Before 1/1/19 (750 ILCS 5/504(b-1)(1)(B)) and (750 ILCS 5/504(b-4))
Modification of maintenance orders entered prior to 1/1/19 that are and continue to be eligible for inclusion in the gross income of the payee for federal income tax purposes and deductible by the payor shall be calculated by taking:

 

30% of the payor’s gross annual income minus 20% of the payee’s gross annual income, unless both parties expressly provide otherwise in the modification order. The amount calculated as maintenance, however, when added to the gross income of the payee, may not result in the payee receiving an amount that is in excess of 40% of the combined gross income of the parties. For any order for maintenance or unallocated maintenance and child support entered before 1/1/19 that is modified after 12/31/18, payments thereunder shall continue to retain the same tax treatment for federal income tax purposes unless both parties expressly agree otherwise and the agreement is included in the modification order.

 

Maintenance Findings (750 ILCS 5/504(b-2)(3))
The court shall state whether the maintenance award is fixed-term, indefinite, reviewable, or reserved by the court.

 

Gross income for Maintenance Purposes (750 ILCS 5/504(b-3))
Gross income means all income from all sources, except maintenance payments in the pending proceedings shall not be included.

 

Net income for Maintenance Purposes (750 ILCS 5/504(b-3.5))
Net income has the meaning provided in Section 505 of the Act (i.e., Child Support), except maintenance payments in the pending proceedings shall not be included.

 

Maintenance Designation (750 ILCS 5/504(b-4.5))

• Fixed-term maintenance (750 ILCS 5/504(b-4.5)(1)) – If a court grants maintenance for a fixed term, the court shall designate the termination of the period during which this maintenance is to be paid. Maintenance is barred after the end of the period during which fixed-term maintenance is to be paid.
• Indefinite maintenance (750 ILCS 5/504(b-4.5)(2)) – If a court grants maintenance for an indefinite term, the court shall not designate a termination date. Indefinite maintenance shall continue until modification or termination under Section 510.
• Reviewable maintenance (750 ILCS 5/504(b-4.5)(3)) – If a court grants maintenance for a specific term with a review, the court shall designate the period of the specific term and state that the maintenance is reviewable. Upon review, the court shall make a finding in accordance with 504(b-8), unless the maintenance is modified or terminated under Section 510.

 

II. Child Support (750 ILCS 5/505)

The Illinois child support statute was amended to align with the federal tax law changes concerning maintenance, and to create uniformity with the new Illinois maintenance statute outlined above.

 

Gross income for Child Support Purposes (750 ILCS 5/505(a)(3)(A))
Gross income includes maintenance treated as taxable income for federal income tax purposes to the payee and received pursuant to a court orer in the pending proceedings or any other proceedings and shall be included in the payee’s gross income for purposes of calculating the parent’s child support obligation.

 

Net Income for Child Support Purposes (750 ILCS 5/505(a)(3)(B))
Net income includes maintenance not includable in the gross taxable income of the payee for federal income tax purposes under a court order in the pending proceedings or any other proceedings and shall be included in the payee’s net income for purposes of calculating the parent’s child support obligation.

 

Spousal Maintenance Adjustment (750 ILCS 5/505(a)(3)(F)(2)
Obligations pursuant to a court order for spousal maintenance in the pending proceeding actually paid or payable to the same party to whom child support is to be payable or actually paid to a former spouse pursuant to a court order shall be deducted from the parent’s after-tax income, unless the maintenance obligation is tax deductible to the payor for federal income tax purposes, in which case it shall be deducted from the payor’s gross income for purposes of calculating the parent’s child support obligation.

 

III. Modification and termination of provisions for maintenance, support, educational expenses, and property disposition (750 ILCS 5/510)

 

An order for maintenance may be modified or terminated only upon a showing of a substantial change in circumstances. The court may grant a petition for modification that seeks to apply the changes made to Section 504 by these amendments to an order entered before the effective date of these amendments only upon a finding of a substantial change in circumstances that warrants application of the changes. The enactment of the amendment itself, does not constitute a substantial change in circumstances warranting a modification. 750 ILCS 5/510(a-5).

 

IV. Disposition of Property and Debts – Designation of Life Insurance Beneficiary (750 ILCS 5/503)

 

A large aspect of divorce is the division of property and debts, including life insurance policies and proceeds. Newly enacted Section 503(b-5)(2) addresses treatment of a life insurance beneficiary designation upon entry of a divorce judgment, and is summarized below:

 

If a divorce judgment is entered after an insured has designated the insured’s spouse as a beneficiary under a life insurance policy in force at the time of entry, the designation of the insured’s former spouse as beneficiary is not effective unless:

 

The divorce judgment designates the insured’s former spouse as the beneficiary;
The insured re-designates the former spouse as the beneficiary after judgment entry; or
The former spouse is designated to receive the proceeds in trust for, or on behalf or, or for the benefit or a child or a dependent of either former spouse.

 

If a designation is not effective under one of the foregoing examples, the proceeds of the policy are payable to the named alternative beneficiary, or if there is not a named alternative beneficiary, to the estate of the insured.

 

An insurer who pays the proceeds of a life insurance policy to the beneficiary under a designation that is not effective under the above examples is liable for payment of the proceeds to the person or estate, only if:

 

Before payment of the proceeds to the designated beneficiary, the insurer receives written notice at the home office of the insurer from an interested person that the designation is not effective under the statute; and
The insurer has not filed an interpleader (i.e., a lawsuit to compel two parties to litigate a dispute).

 

Note: the provisions of the new statute do not apply to life insurance policies subject to regulation under ERISA, the Federal Employee Group Life Insurance Act, or any other federal law that preempts application.

 

V. Visitation by Certain Non-Parents (750 ILCS 5/602.9)

With certain exceptions, certain non-parents may bring an action requesting visitation with a child.

 

The list of “appropriate persons” includes grandparents, great-grandparents, step-parents, and siblings of a minor child age 1 or older. These individuals may bring a petition for visitation and electronic communication if there has been an unreasonable denial of visitation by a parent and that denial has caused the child undue mental, physical, or emotional harm, and one of the following qualifying conditions exists:

 

• The child’s other parent is deceased or has been missing at least 90 days;
• A parent of the child is incompetent as a matter of law;
• A parent has been incarcerated in jail or prison for more than 90 days immediately prior to filing the petition;
• The child’s parents have been granted a divorce or legal separation, or there is a pending dissolution proceeding or other action involving parental responsibilities or visitation of the child and at least 1 parent does not object to the grandparent, great-grandparent, step-parent, or sibling having vitiation with the child; or
• The child is born to parents who are not married to each other, the parents are not living together, the petitioner is a grandparent, great-grandparent, step-parent, or sibling of the child and the parent-child relationship has been legally established.

 

The newly amended Section 602.9(c)(E)(iv)-(v) clarifies that if the petitioner is a grandparent or great-grandparent, the parent-child relationship need be legally established only with respect to the parent who is related to the grandparent or great-grandparent. If the petitioner is a step-parent, the parent-child relationship need be legally established only with respect to the parent who is married to the petitioner or was married to the petitioner immediately before the parent’s death.

 

For help with your divorce and/or allocation of parenting time and responsibilities, contact Feinberg Sharma (FS) at 312-376-8860 or 847-394-3940.

In re Marriage of Allen, 2016, 1st District

By: Feinberg Sharma / February 10, 2017

 

 

Keith and Debra Allen had lived together for 13 years prior to getting marriage. They had been married for less than 7 months when they filed for divorce. Before their case went to trial, Debra sought leave to amend her Petition with common law claims based on their 13 pre-marital years of cohabitation. The primary dispute was whether Debra was entitled to a greater share of the marital property and to maintenance due to the length of their relationship and cohabitation.

 

In Hewitt v. Hewitt, 77 Ill. 3d 49, 394 N.E. 2d 1204 (1979), an unmarried woman, who was in a relationship for 15 years, filed a Petition for Dissolution of Marriage and in an attempt to claim property from her boyfriend. The Illinois Supreme Court rejected all of her claims, stating the Judiciary should not recognize mutual property rights between nonmarried couples.

 

In In re Marriage of Blumenthal, 2014 IL App (1st) 132250, 28, 24 N.E. 3d 168, a lesbian couple was allowed to bring common law claims regarding property they accumulated together. The Court came to this holding because in contrast to Hewitt, the couple in Blumenthal did not have the right to marry in Illinois and Illinois’ public policy favored the recognition of same sex domestic relationships.

 

In the Allen case, the Court denied Debra leave to add common law claims to her divorce proceedings based on her relationship with Keith. Since they are an opposite sex couple who had the option to marry throughout their relationship, any other holding by the Court would contravene Illinois public policy which bans common law marriage.