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Family Law FLASHPOINTS November 2018

November 15, 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

Petition for Declaratory Judgment Allowed To Proceed Even When Underlying Petition for Dissolution of Marriage Was Voluntarily Dismissed

In Kranzler v. Kranzler, 2018 IL App (1st) 171169, after the wife moved to voluntarily dismiss her petition for dissolution of marriage and the husband had not filed a counterpetition, the husband requested the court to proceed on his petition for declaratory judgment to declare the parties’ premarital agreement valid. The trial court granted the wife’s motion for voluntary dismissal but found the husband’s petition for declaratory judgment constituted an independent action, which survived. The wife moved to dismiss the petition for declaratory judgment on the grounds that the court lacked subject-matter jurisdiction to hear the petition because the underlying divorce case had been dismissed. The trial court denied the motion and proceeded to hearing on the declaratory judgment. The appellate court upheld. In an extensive analysis of Illinois caselaw, the court held the validity and enforceability of the agreement formed a separate claim for relief based on In re Marriage of Rife, 376 Ill.App.3d 1050, 878 N.E.2d 775, 316 Ill.Dec. 53 (2d Dist. 2007), In re Marriage of Best, 228 Ill.2d 107, 886 N.E.2d 939, 319 Ill.Dec. 815 (2008), and In re Marriage of Krol, 2015 IL App (1st) 140976, 29 N.E.3d 433, 390 Ill.Dec. 501. The court noted that at the time the trial court heard the motion for voluntary dismissal, an active controversy regarding the agreement remained. The pleadings that were pending were the husband’s motion for declaratory judgment, the wife’s counter-motion for declaratory judgment, the husband’s motion for leave to file a counterpetition, and the wife’s petition for injunctive relief. The husband had also filed a separate petition for dissolution of marriage after his motion for leave to file a counterpetition was denied.

Premarital Agreement Executed Moments Before the Wedding Ceremony Valid and Enforceable

In Kranzler, supra, at hearing on a petition for declaratory judgment, the husband sought to enforce the agreement and the wife opposed. The trial court heard extensive testimony regarding the circumstances that surrounded the negotiation and execution of the agreement, which included testimony that neither party necessarily wanted to marry the other, but that both of their families put pressure on them to marry due to the fact the wife was pregnant. Because the agreement was executed on October 9, 1984, common law, not the Premarital Agreement Act, 750 ILCS 10/1, et seq., applied. The agreement was held to be valid and enforceable. The wife was awarded a monthly amount in maintenance, which increased in amount and length in proportion to the length of marriage, as well as a property settlement that included all assets in her name and half of all marital property. Therefore, the agreement did not create an unforeseen condition of penury and was fair and reasonable at the time of signing. Furthermore, there was no duress despite the wife’s arguments that she was ill from the pregnancy at the time of signing, and the wedding occurred right after she signed. The agreement was presented to her several weeks prior, she had reviewed it with a lawyer, and it contained a full disclosure of all of the husband’s assets. Furthermore, although the wife argued she had tremendous pressure to get married from the parties’ families, the record was clear the pressure did not come from the husband.

United States Declared Minor Children’s Habitual Residence Under Hague Convention

In Bandžius v. Šulcaite, No. 18-CV-3811, 2018 WL 5018459 (N.D.Ill. Oct. 15, 2018), the mother and father were divorced in Lithuania in 2009, and the children lived primarily with the mother, who worked for the Lithuanian State and Diplomatic Protocol Department. In 2014, she was transferred to the Lithuanian Consulate in Chicago. After negotiation in the Lithuanian trial court, an order was entered allowing her the right to take the children to Chicago. The order reflected the expectation that the mother’s term would be three years, but it did not impose a three-time limit on her right to retain the children in the United States. Within a year of being in Chicago, the mother married, and she and her new husband later had a child. The father filed custody pleadings in Lithuania and also filed a Hague case in Lithuania. In April 2015, the Central Authority of Lithuania forwarded the Hague petition to the Central Authority of the United States. However, the father did not institute any Hague proceedings in the United States “until May 31, 2018, more than three years later.” 2018 WL 5018459 at *6. At the time of the evidentiary hearing, both minor children had become acclimated to the United States. They were living with their mother, stepfather, and baby brother. They were fluent in English, enrolled in schools, and active in extracurriculars. The mother had extended family in Chicago whom they were able to spend time with as well. The court also noted that the parents’ last shared intent was the children would move with their mother to Chicago. Although the father thought the children would be gone for only three years, he acquiesced in a “sea-change” in their lives and it was reasonable to construe this acquiescence as acceptance of their new habitual residence being the United States. Id. The court also conducted an in camera interview of the children in which they credibly articulated their desire to stay in Chicago. Therefore, the United States became the children’s habitual residence during the period in which the father acquiesced to their presence here.

For more information on Family Law, see Family Law: Child-Related Issues in Dissolution Actions — 2018 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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