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Family Law FLASHPOINTS June 2020

June 15, 2020Print 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

Illinois Supreme Court Amends Rules To Support Use of Remote Hearings in Court Proceedings

The Supreme Court has announced changes to several Supreme Court Rules to facilitate the use of technology for remote hearings. The court repealed Rule 185, created a new Rule 45, and amended Rules 46 and 241.

1. Rule 185, which was repealed, involved the use of telephone or videoconferencing in civil cases.

2. New Rule 45 provides that the court may, upon request or on its own order, allow a case participant to participate remotely, including by telephone or videoconference. This rule applies to both civil and criminal cases.

3. Amended Rule 46 allows, for the first time, for the recording from a videoconference hearing to be used by the official court reporter to make the transcript that becomes the official record of proceeding.

4. Amended Rule 241 provides that the court may allow a case participant to testify or otherwise participate in a civil trial or evidentiary hearing by videoconferencing from a remote location.

The complete press release with links to the new Illinois Supreme Court Rules can be found here.

The Supreme Court has also issued a “Remote Court Proceedings — Guidance Document,” which lists best practices and offers guidance for Illinois courts with respect to operating virtual courtrooms.

Illinois Supreme Court Issues Guidelines for Resuming Court Proceedings During COVID-19 Pandemic

The Illinois Supreme Court has issued both an order (M.R. 30370) and operational guidelines to assist in the reopening of Illinois courts during the pandemic. M.R. 30370 permits each circuit to return to hearing all court matters either in person or remotely according to a schedule adopted by the chief judge of each individual circuit. The promulgated guidelines recognize that each circuit is positioned to address the COVID-19 challenges based on local conditions and directs that the courts consider the health and safety of court personnel, litigants, and the public, as well as rethinking what court appearances will now look like.

M.R. 30370 can be found here, while the operational guidelines can be found here.

Remote Notarization and Witnesses

The Government Emergency Administration Act, S.B. 2135, 101st Gen.Assem. (2020), has passed both chambers and will take effect immediately upon the Governor signing the bill. The new statute will effectively codify Executive Order No. 2020-14 (Mar. 26, 2020), 44 Ill.Reg. 5,961 (Apr. 10, 2020), which permits documents to be witnessed by a notary through two-way audio-video communication provided several procedural requirements and protocols are met. The notary public commissioned in Illinois must be physically within the state while performing the notarial act. Additionally, the two-way audio-video communication must be recorded and preserved for a period of at least three years. There are several procedural requirements to follow and record on the two-way audio-communication, including the notary, witnesses, and signatory attesting that they are physically located in the State of Illinois during the act, and sufficiently recording the document that is being executed and the signing itself. A full copy of the proposed statute, 5 ILCS 175/95-20, can be found here.

Husband’s Breach of Contract Action Against Wife Regarding Postnuptial Agreement Dismissed with Sanctions

In Davis v. Davis, 2019 IL App (3d) 170744, 144 N.E.3d 649, 437 Ill.Dec. 537, the husband brought a breach-of-contract action against the wife, alleging that she breached the parties’ postnuptial agreement by challenging its validity and that he was damaged because he was required to expend funds to defend the validity of the postnuptial agreement. Under the terms of the postnuptial agreement, in the event of a divorce, the husband was required to pay all of his own legal fees and a portion of the wife’s legal fees. The wife filed a motion to dismiss, which the trial court granted. In his claim, which was brought separate and apart from the pending dissolution of marriage action, the husband attempted to distinguish between his legal fees and damages in a breach-of-contract complaint. However, the appellate court noted that the husband was essentially attempting to make the wife pay for his fees and costs associated with the defense of the validity of the postnuptial agreement. The appellate court upheld the dismissal of the breach-of-contract action. The contract claim and the dissolution of marriage action involved the same parties, were based on substantially the same facts, and arose from the same occurrence. Because there was another action pending with the same parties and the same cause, dismissal was proper. The court further noted that dissolution proceedings are designed to dispose of all matters connected with the dissolution of a marriage. The appellate court also imposed sanctions on the husband and called his contact action a “dubious complaint” and the appeal a “meritless appeal” and required him to pay all of the wife’s fees and costs incurred in connection with the breach-of-contract action. 2019 IL App (3d) 170744 at ¶23. His action unnecessarily extended the proceedings between the parties.

For more information about family law, see FAMILY LAW: CHILD-RELATED ISSUES IN DISSOLUTION ACTIONS (IICLE®, 2018). 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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