Articles Posted in Family Law

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The Illinois Supreme Court recently adopted a new rule that allows couples going through a divorce to have lawyers work with the parties on a limited-scope to attempt a settlement while avoiding costly litigation.

Illinois Supreme Court Rule 294 (“Rule 294”) was adopted by the Court on June 8, 2018 and became effective on July 1, 2018. The new Illinois Supreme Court Rule is a result of the new Illinois law allowing for the collaborative process. 750 ILCS 90/1 Collaborative Process Act (“Collaborative Act”) became an effective law in Illinois on January 1, 2018.

The Collaborative Act creates a new way for couples that have a dispute in relation to a: marriage, divorce, dissolution, annulment, legal separation, or property distribution. Also, the Collaborative Act can be a useful tool for a dispute regarding a: significant decision making and parenting time of children; maintenance and child support; adoption; parentage; and premarital, marital, and post-marital agreements.

The Collaborative Act was put in place to allow couples that have a legitimate dispute about a family issue, to have a quicker and more cost-effective way to resolve these issues. The Collaborative Act saves couples both time and money and allows for a back-and-forth of communication between the parties to reach a better result without the ruling of a judge. The Illinois legislature passed the Collaborative Act to give couples an alternative route from the court system. The Illinois court system has been viewed as slow to resolve family law issues or in some litigant’s opinions unfair to one of the parties. Continue reading

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DiTommaso Lubin Austermuehle filed its’ Appearance in the Illinois Supreme Court for Respondent’s appeal of 750 ILCS § 5/513 (“Section 513”) being declared unconstitutional.

When an Illinois Statute is declared by a court to be unconstitutional it can be directly appealed to the Illinois Supreme Court and it does not have to go through to the Appellate Court first. Illinois Supreme Court Rule 302(a)(1).

The Respondent in the underlying case, where Section 513 was declared by the circuit court to be unconstitutional filed a direct appeal to the Illinois Supreme Court to decide if Section 513 is unconstitutional.

DiTommaso Lubin Austermuehle was retained by our client in the circuit court case to defend him in the appeal before the Illinois Supreme Court.

The circuit court’s ruling that Section 513 is unconstitutional was only applicable to the facts of the case. Our client’s fundamental right of raising his child and his decision to guide his daughter to a more appropriate college through the tightening of his pocket-book strings was obstructed by Section 513.

Section 513 creates two separate classes of persons, those married with children and those unmarried, widowed, or divorced with children. This is a violation of the Fourteenth Amendment of the United States Constitution. The Fourteenth Amendment guarantees equal protection to all United States citizens regardless of their classification by the government. Continue reading

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The Illinois Guidelines for Statutory Maintenance are Inapplicable in Proceedings to Modify Maintenance that were Ordered before the Amendment Went into Effect.

Currently, maintenance in Illinois is governed by 750 ILCS 5/504 of the Illinois Marriage and Dissolution of Marriage Act. Recently, Section 504 was amended, and the amendment became effective on January 1, 2018, which increased the combined gross annual income to be less than $500,000 and has a guideline for the duration and amount of maintenance. If a couple that is going through a divorce has a combined annual income in excess of $500,000, then the court can set maintenance at any amount and for any duration as it deems necessary and appropriate. Also, when the couple has a combined gross annual income that is less than $500,000, the court can deviate from the guidelines of Section 504, but the court must make a special finding and disclose its special finding.

Recently, the Illinois Appellate Court decided, if a divorce took place prior to the Section 504 amendment and then a party petitions the Court after the amendment went into effect, the new guidelines do not apply to the modification of maintenance.

This groundbreaking case involved a Petitioner who filed for a dissolution of marriage in 2005, which is well before the amendment to Section 504 went into effect. At the time of Petitioner filing for divorce, the couple was married for nineteen years and nine months (just shy of twenty years). In 2007, the district court dissolved the parties’ marriage and in the court’s Order it ordered that the former husband must pay his former wife maintenance. Also, the court’s order disallowed modification of the maintenance award until the former wife reached the age of sixty-five. Later, both parties filed petitions to modify the maintenance award. The district court found that the Section 504 amendment should be applied to the former couples’ modification of the maintenance award. It was decided by the district court that the former husband’s petition for a reduction of maintenance was denied and that the former wife’s petition for an increase of maintenance was granted due to a substantial change of circumstances of the party’s financial situation. The former wife was granted permanent maintenance by the district court (which under Section 504 would typically only be awarded to a spouse that was in a twenty or more-year marriage). Continue reading

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In Illinois when property is at issue during a divorce the court must first decide if the property in question is marital property or non-marital property. Then, the court can make the decision of who should get what or how the property should be split-up.

The Illinois Marriage and Dissolution of Marriage Act defines what property is to be considered “marital property” or “non-marital property”. 750 ILCS 5/503(a). For example, any property that is acquired as a gift, legacy, or in exchange for such property is considered non-marital property and would be the spouse’s sole property. The court in a contested divorce should not consider non-marital property when making a decision of who should get what at the end of the divorce.

Recently, the Appellate Court concluded that a former spouse’s real estate, which his nonmarital business was located on, was marital property. The business itself was nonmarital property, but the land where the business was on, was considered marital property. Continue reading

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Maintenance previously referred to as “Alimony” had a recent revamp in Illinois. Maintenance in Illinois is governed by 750 ILCS 5/504 of the Illinois Marriage and Dissolution of Marriage Act. Under the previous version of Section 504 the maintenance guidelines only applied to divorces when the couple had a combined gross annual income of less than $250,000. Section 504 was recently amended, and the amendment became effective on January 1, 2018, which increased the combined gross annual income to be less than $500,000.

As most couples in Illinois have a combined gross annual income that is less than half-a-million dollars, the amendment to Section 504 affects the vast majority of couples that are filing for divorce here in Illinois. If a couple that is going through a divorce has a combined annual income in excess of $500,000, then the court can set maintenance at any amount and for any duration as it deems necessary and appropriate. When the couple has a combined gross annual income that is less than $500,000, the court can also deviate from the guidelines of Section 504, but the court must make special findings and disclose the special findings. Continue reading

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A recent ruling in the Illinois Appellate Court decided the controversial issue if a father was an unfit parent and should have his parental rights terminated.

The minor child A.F., allegedly suffered a fracture to her right femur and her left tibia by means other than accidental while in the care of her father. The State of Illinois filed charges against her father for subjecting A.F. to an environment injurious to her welfare due to the fractures the child suffered. Then, the State filed supplemental charges against A.F.’s father based on the allegations that “…the father having disregard for the minor’s pain or risks of moving the minor’s fractured limb.”

A.F.’s father stipulated to the allegations of the original petition, and that they could be proved by the preponderance of the evidence. That same day, the trial court entered an order finding that A.F. was neglected. Soon thereafter, the trial court entered an order finding the father unfit based on the physical abuse of A.F.

Also, these injuries that A.F. suffered gave rise to criminal proceedings against A.F.’s father. Initially, the father was charged with a Class X Felony of aggravated battery to a child, but based on a plea agreement, the father plead guilty to a Class 2 Felony of aggravated domestic battery. Based on the plea agreement, the Class X felony charge was dismissed, and the father was sentenced to a term of seven years in the Illinois Department of Corrections.

Then the State petitioned the court to have the father’s paternal rights terminated. The father’s paternal rights were petitioned to be terminated under 750 ILCS 50/1(D)(i), because the father was convicted of Aggravated Domestic Battery to a Minor. The father filed an answer to these claims and admitted to his conviction but claimed that he was rehabilitated and denied that it was in the best interest of the child to have his parental rights terminated. Continue reading

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Illinois Appellate Court Ruling on Due Process Rights of Incarcerated Parents

A recent ruling in the Illinois Appellate Court decided if an incarcerated father had his due process rights violated because he was unable to attend a hearing terminating his parental rights since he was in a federal correctional facility in Wisconsin.

Two very young children J.S. and T.S. were found home alone by the Rockford police in their mother’s home. J.S. (seven years old) stated to the responding officers that he sometimes would babysit his brother T.S. (one-year-old). During the investigation, police found marijuana, scales, and a BB Pistol at the unattended home. The Department of Children and Family Service took J.S. and T.S. under protective custody. At this time their father was already in a federal correctional facility in Wisconsin. The father was previously indicted and convicted of drug trafficking crimes and possession of a firearm in furtherance of drug trafficking crimes. The father had other prior convictions.

As a result of the incident, the State filed neglect petitions as to J.S. and T.S. The trial court was aware that the father was in Wisconsin due to his incarceration. The trial court appointed counsel to the children’s father and a writ of habeas corpus was issued asking the federal correctional facility to have the father delivered to the trial court, but the writ was denied. Typically, the federal government does not honor a state writ of habeas corpus. The mother of the children stipulated to one count of the neglect petition, which alleged that the minors were left unsupervised for an unreasonable period of time. The trial court concluded that J.S. and T.S. were neglected minors and DCFS was appointed as their legal guardian and custodian. Continue reading

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A recent ruling in the Illinois Appellate Court decided a very tough decision about two very qualified parents and whether the one parent could move out of Illinois with their minor child, so she could pursue her dream job.

Two individuals were married and had one minor child, they decided to separate and had been granted joint custody and decision making for their child. While married the couple lived in the City of Chicago and then later moved to Downers Grove in their marital home. During the divorce proceedings the marital home was sold, and the father moved to a rental home a few doors down from the marital home and the mother moved to an apartment nearby. The minor child’s mother had the life long dream of getting her Ph.D. from a school in North Carolina. The mother petitioned the circuit court to relocate to North Carolina because she was successful in being admitted to the Ph.D. program that she wanted to attend and would work in her dream job while studying for her degree. Experts for both parents determined that both parents had a successful and nurturing relationship with their minor child and that she would succeed with either parent in Illinois or North Carolina. The father objected to his minor child moving away to North Carolina as, among other things, he would not see her as often and would not have as many in-person interactions with his daughter. Continue reading

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An Illinois trial court ruled in favor of our client. The trial court held that the Illinois College Support Requirement for unmarried parents is unconstitutional as violating the equal protection clause of the United States Constitution.

Our client, a very caring father wanted to pay 100% of the college expenses for his daughter to attend the best marine biology programs in the country to which she had been accepted. Her dream was to become a marine biologist. However, with the financial assistance of her mother, the daughter opted to attend a junior college and “party school” in Florida that had even made a list for the top party schools in the State. The Junior College also did not offer a degree in marine biology. Our client declined to pay for junior college tuition because he was shut out of the decision of where his daughter went to school. The Court originally ordered him to contribute to college as required by Illinois for all unmarried parents. We then sought a declaration that the statute was unconstitutional for treating unmarried parents differently and assuming they were not normal parents and would not look out for their children’s best interests as much as married parents.  The Court found the statute unconstitutional and held that divorced or unmarried parents should not be treated differently than married parents.

The Court noted:

While traditional two-parent, married families were the norm in 1978, in 2018 they make up less than half. In fact, if considered in statistical terms, children from either non-married or divorced parents would be considered “normal” based on today’s demographics.

It held in finding the Illinois statute unconstitutional:

The rational basis standard utilized in Kujawinski presumes that never married or divorced couples are less normal and less likely to provide post-secondary education for their offspring than couples who are married, or single parents. While this may have been true in 1978, there is no basis for such a conclusion today.

You can view the Court’s full opinion here. Continue reading