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Family Law FLASHPOINTS December 2018

December 14, 2018Print This Post Print This Post

Donald C. Schiller & Michelle A. Lawless
Schiller DuCanto & Fleck LLP, Chicago, Lake Forest & Wheaton
312-641-5560 | E-mail Donald Schiller | E-mail Michelle Lawless

New Tax Law Eliminates Maintenance Deduction Beginning in January 2019

Beginning January 1, 2019, maintenance payments are no longer deductible by the payor and taxable to the payee. This change in the tax law does not apply to judgments entered before January 1, 2019. In response to the federal tax law change, the Illinois legislature is amending the maintenance statute to account for the elimination of the maintenance deduction under the new tax code for any divorce judgments entered on or after January 1, 2019. The new formula is 33 1/3 percent of the payor’s annual net income less 25 percent of the recipient’s annual net income, not to exceed 40 percent of the parties’ combined annual net income. The amendments will take effect January 1, 2019. A complete copy of the federal tax legislation (H.R.1, 115th Cong., 1st Sess., (2017), which became Pub.L. No. 115-97, 131 Stat. 2054 (1017)) and the Illinois amendments can be found at www.congress.gov/bill/115th-congress/house-bill/1 and www.ilga.gov/legislation/publicacts/100/pdf/100-0923.pdf, respectively.

Amended IMDMA Did Not Apply to Child Support Modification Proceeding Filed and Pending Prior to January 1, 2016

In In re Marriage of Benink, 2018 IL App (2d) 170175, a procedurally complex postjudgment proceeding, both the ex-wife and ex-husband had filed competing motions to modify child support. The ex-husband sought to decrease his obligation, and the ex-wife sought to increase the obligation. Both petitions had been filed in 2013 but did not go to hearing until 2016. Pursuant to 750 ILCS 5/801(c), the amended Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/101, et seq., applies only to modification proceedings commenced after January 1, 2016. Because the petitions were pending prior to January 1, 2016, the amended statute did not apply.

Absence of Precise Illinois Supreme Court Rule 304(a) Language Fatal to Obtaining Appellate Jurisdiction

In In re Marriage of Sanchez, 2018 IL App (1st) 171075, the husband appealed a postjudgment denial of his motion to reconsider the denial of a motion to abate child support payments. He had filed a motion to abate support in response to the Illinois Department of Healthcare and Family Services (HFS), obtaining an order finding him in indirect civil contempt for failure to pay support. The contempt was stayed. The trial court’s order relating to the contempt was not final and appealable. First, a contempt order is not final and appealable until the party in contempt has been sanctioned or committed. Second, the order, which stated, “[t]his is a final and appealable order,” did not contain sufficient language to comply with Supreme Court Rule 304(a). The court relied on In re Marriage of Teymour, 2017 IL App (1st) 161091, 86 N.E.3d 1113, 416 Ill.Dec. 828, wherein it aligned with the Second and Fourth Districts to adhere to S.Ct. Rule 304(a)’s explicit mandate that a final order disposing of one of several claims may not be appealed without an express finding that “there is no just cause for delay.” 2018 IL App (1st) 171075 at ¶26.

Strict Adherence to Filing Deadlines Required with Electronic Filing

Although not a family law case, the Second District opined on the issue of electronic filing deadlines in Peraino v. County of Winnebago, 2018 IL App (2d) 170368, 101 N.E.3d 780, 421 Ill.Dec. 798. The plaintiff in a personal injury suit attempted to electronically file a motion to reconsider shortly before midnight the day it was due, but the motion was not timely uploaded, causing it to be file-stamped on 12:03 a.m. the next day. In its opinion, the court noted that the plaintiff conceded that the problem was not predicated on a technical problem in the e-filing system, but rather user error and problems experienced by the filer. The court also noted that while its opinion may seem harsh, as the plaintiff lost both his chance to have a motion to reconsider addressed and a potential appeal, he had 30 days to file the motion to reconsider, he could have obtained an extension within those 30 days, or he could have requested from the appellate court for leave to file a late notice of appeal under S.Ct. Rule 303(d), but he did not.

Nonbiological Parent in Same-Sex Marriage Held To Be Legal Parent of Child Conceived Through Artificial Insemination

In In re Marriage of Dee J., 2018 IL App (2d) 170532, 101 N.E.3d 780, 421 Ill.Dec. 798, a dissolution of marriage proceeding of a same-sex couple, the trial court ordered the nonbiological mother of a minor child conceived through artificial insemination as the child’s legal parent. The appellate court held that the evidence at trial showed that during the marriage the parties agreed to conceive a child together through artificial insemination, enrolled in the artificial insemination program together, jointly selected a sperm donor, and jointly paid for the fertility treatments and that both parties were identified on the child’s birth certificate as “co-parents.” There was also evidence that the nonbiological mother actively participated in co-parenting after the birth of the child. Thus, a parent-child relationship existed. The court also noted that a best-interests finding is not required for the determination of a parent-child relationship but rather is required when the trial court determines appropriate parenting time and the allocation of decision-making responsibilities.

Assets Transferred to Series of Irrevocable Trusts During Marriage Held To Be Neither Marital Nor Nonmarital Assets

In In re Marriage of Larocque, 2018 IL App (2d) 160973, 107 N.E.3d 349, 424 Ill.Dec. 36, the husband prevailed in the trial court on a motion for summary judgment wherein he argued dozens of irrevocable trusts created during the marriage were neither marital nor nonmarital property. The wife claimed that while the marriage was undergoing a breakdown, the husband transferred millions of dollars into a series of irrevocable trusts in an effort to defeat her claims to marital property. Relying on In re Marriage of Romano, 2012 IL App (2d) 091339, 968 N.E.2d 115, 360 Ill.Dec. 36, and Johnson v. LaGrange State Bank, 73 Ill.2d 342, 383 N.E.2d 185, 22 Ill.Dec. 709 (1978), the appellate court upheld the granting of the motion for summary judgment. The estate plan was not a sham, colorable, illusory, or tantamount to fraud, which is the standard under the two aforementioned cases. The court noted that it was not precluding the wife from arguing at trial that by creating the trusts, the husband had committed dissipation or fraud against her.

Petitioner in Order of Protection Case Properly Allowed To Testify to Facts Not Contained in Body of Petition

At Sandberg v. Brian B., 2018 IL App (2d) 180082, a hearing on a plenary order of protection, the petitioner testified to two specific fact patterns that did not appear in her underlying petition: (1) that the respondent had pushed their son into a wall; and (2) that the respondent hit their son in the head with a cell phone. The trial court issued a one-year order of protection, and the respondent appealed on the grounds that the petitioner should not have been able to testify as to acts not contained in her underlying petition. The appellate court affirmed. Section 214 of the Domestic Violence Act, 750 ILCS 60/101, et seq., provides that in determining whether to grant an order of protection, the trial court shall consider the nature, frequency, severity, pattern, and consequences of the respondent’s past abuse of petitioner or any family or household member as well as the danger that any minor child will be abused. Therefore, not only was the trial court allowed to consider the evidence that the respondent had recently pushed the child and hit him in the head with a cell phone, it was required to do so.

Net Proceeds from Personal Injury Settlement Attributable to Damages for Pain and Suffering and Disability Is Income for Child Support Purposes

In In re Marriage of Plowman, 2018 IL App (4th) 170665, the Fourth District joined with the Fifth District case In re Marriage of Fortner, 2016 IL App (5th) 150246, 52 N.E.3d 682, 402 Ill.Dec. 761, in holding that pain and suffering and disability damages are income for child support purposes. This holding is directly contrary to the Second District’s holding in Villanueva v. O’Gara, 282 Ill.App.3d 147, 668 N.E.2d 589, 218 Ill.Dec. 105 (2d Dist. 1996). The court held that Vallanueva failed to consider the effect damages awarded for pain and suffering and disability had on the receiving parent that was a positive impact on the parent’s ability to support his or her child. The court believed its holding struck a balance between assuring reasonable provisions are provided for children and the realities of the personal and financial costs associated with injuries for which a personal injury award is intended to compensate.

For more information on Family Law, see FAMILY LAW: DISSOLUTIONS OF MARRIAGE COURT PROCEEDINGS — 2017 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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