Michelle A. Lawless, Law Office of Michelle A. Lawless LLC, Chicago
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Top Ten Family Law FLASHPOINTS of 2025
1. Illinois Supreme Court holds provision in marital settlement agreement requiring husband to pay wife 50 percent of marital portion of federal veterans’ disability payments was not preempted by federal law. The parties in In re Marriage of Tronsrue, 2025 IL 130596, were divorced in 1992, and in 2019 the husband filed a petition to terminate disability payments to the wife, arguing that such a provision in the marital settlement agreement (MSA) was void under federal law. The wife filed a motion to dismiss, which was granted by the trial court, upheld by the appellate court, and affirmed by the Illinois Supreme Court. The anti-assignment provisions of the federal Veterans Benefits Act of 2003, Pub.L. No. 108-183, 117 Stat. 2651, did not preempt state court enforcement of a MSA wherein the husband voluntarily agreed to pay the wife a portion of the husband’s benefits. The supreme court reaffirmed that subject-matter and personal jurisdiction existed at the time of judgment, thereby making the judgment not void. The court also held that res judicata barred the husband’s collateral attack nearly 30 years after the judgment.
2. Illinois Supreme Court declines to recognize cause of action for tortious interference with parent-child relationship. After the mother of two children in Hulsh v. Hulsh, 2025 IL 130931, successfully regained custody of the children under the Hague Convention and the International Child Abduction Remedies Act, Pub.L. 100-300, 102 Stat. 437, the mother filed a state court action in Cook County against the former mother-in-law and brother-in-law alleging tortious interference with the mother’s custodial rights, wherein the mother sought to recover expenses incurred in the federal district court. The mother’s complaint detailed both the mother-in-law and brother-in-law’s alleged involvement in the aiding and abetting of the kidnapping of the children. The trial court dismissed those claims. The appellate court affirmed since Illinois does not recognize tortious interference with a parent’s custodial rights as a tort. The Illinois Supreme Court also affirmed, restating that the Illinois legislature is the proper venue for Illinois to create such cause of action.
3. Discovery limited in postjudgment modification proceeding when husband admitted having the ability to pay any reasonable child support ordered. In a postjudgment child support modification proceeding filed by the wife in In re Marriage of Knight, 2024 IL App (1st) 230629, 256 N.E.3d 1158, 482 Ill.Dec. 194, the trial court denied the wife’s discovery request for documents relating to the husband’s substantial nonmarital trust assets because the husband admitted to being able to pay any reasonable amount the trial court ordered. The appellate court classified the admission by the husband and the husband’s counsel at the evidentiary hearing as a judicial admission, but it noted that such a judicial admission did not prohibit the husband from arguing the underlying merits that the requested increase in support was not warranted.
4. Trial court’s denial of postjudgment request for upward modification of child support reversed. The wife in In re Marriage of Knight, supra, sought to increase a $10,000 per month child support award to $25,000 per month on the basis that, since the entry of judgment, the husband’s income and net worth had substantially increased and the husband and the children were enjoying a substantially increased standard of living compared to the standard of living the wife could provide the children. The trial court denied the modification on the basis that (1) the wife failed to demonstrate a substantial change of circumstances uncontemplated by the MSA; and (2) the wife failed to establish an increase in the children’s needs which warranted an increase in child support. The appellate court reversed. At the time of the modification hearing, the husband’s most recent annual incomes were between 25 percent and 127 percent higher than the contemplated earnings set out in the MSA. The appellate court concluded, therefore, that the parties had not contemplated such a substantial increase in the husband’s income. The appellate court found the trial court also erred by concluding that the wife had failed to establish that there had been an increase in the children’s needs, and the trial court should have considered the standard of living the children would have enjoyed had the marriage not been dissolved. There was no dispute that the husband’s substantial increase in income and enhanced lifestyle resulted in a disparity between the standard of living the children enjoyed between the two households.
5. Denial of postjudgment petition for fees and petition for fees related to appeal reversed. Two years after a judgment was entered in In re Marriage of Hyman, 2024 IL App (2d) 230352, 261 N.E.3d 723, 483 Ill.Dec. 726, the wife filed a petition for allocation of undisclosed marital assets that resulted in the wife receiving $130,196 due to the husband failing to disclose certain stock options, and the wife prevailed when the husband appealed. Back in the trial court, the wife filed two petitions for fees, one in the amount of $56,755 related to the underlying postjudgment action, and one in the amount of $24,833 related to the wife’s successful defense of the husband’s appeal. The trial court denied both fee petitions but granted the wife a sum total of $10,000 because the husband had failed to comply with the judgment without compelling cause or justification. The trial court believed $10,000 was a reasonable amount based in part on conversations it had with other family law attorneys. The appellate court reversed on the basis that, when a trial court reduces the amount requested in a fee petition, the court’s ruling should include the reasons justifying a particular reduction, and conversations with lawyers who did not testify before the court are not proper evidence. The appellate court also held that the trial court erred when it did not award 9 percent statutory interest pursuant to §2-1303 of the Code of Civil Procedure, 735 ILCS 5/1-101, et seq.
6. Beneficial interest designation on retirement account trumped MSA and ex-wife was entitled to retirement account proceeds upon ex-husband’s death. The appellate court in Mowen v. Kelly, 2025 IL App (4th) 240906, reversed the trial court’s order granting summary judgment in favor of a decedent ex-husband’s father, who sought to invalidate the ex-wife’s expectancy interest with respect to the ex-husband’s retirement accounts. The ex-husband had designated the ex-wife as the primary beneficiary and the father as the secondary beneficiary before the divorce and never changed the beneficiary designations after the divorce. The language of the MSA awarded the ex-husband’s retirement accounts to the ex-husband as the ex-husband’s sole and separate property but was silent as to the ex-wife’s expectancy or beneficial interest in such accounts. Being awarded property in a judgment of dissolution of marriage means gaining the ability to control who will be the new owner after one dies. The appellate court distinguished the case at bar from Hebert v. Cunningham, 2018 IL App (1st) 172135, 129 N.E.3d 539, 432 Ill.Dec. 321, which dealt with a MSA containing specific language “waiv[ing . . .all property rights and claims which he or she now has or may hereafter have.” 2025 IL App (4th) 240906 at ¶20, quoting Hebert, supra, 2018 IL App (1st) 172135 at ¶46. [Emphasis in original.] Mowen underscores the importance of executing revised beneficiary designations post-divorce or including language in the MSA establishing that both parties waive any property rights and claims either party has at the time of the divorce or that may arise thereafter.
7. Nonmarital character of accounts upheld due to motion in liminebeing granted. In a dissolution of marriage action in In re Marriage of Xinos and Marino, 2025 IL App (1st) 232326, the husband failed to identify or produce documentation in discovery supporting the husband’s claim that various financial accounts were nonmarital property. As a result, the trial court granted the wife’s motion in liminepursuant to Illinois Supreme Court Rule 219(c) filed on the eve of trial barring the husband from introducing evidence of the accounts’ nonmarital character. The appellate court affirmed, noting that the husband failed to supplement discovery responses prior to the discovery cutoff deadlines and failed to make an offer of proof regarding the accounts’ origins or tracing of funds at trial. When a motion in limineis granted, an offer of proof is critical to save for review the argument that the exclusion of the evidence was in error. 2025 IL App (1st) 232326 at ¶25.
8. Postjudgment child support arrearage affirmed when parties did not memorialize alleged oral agreement to modify support in court order. In a postjudgment action in In re Marriage of Spangler and DeFauw, 2025 IL App (2d) 240303, the wife filed a petition for rule to show cause against the husband for failure to pay child support. The trial court found the husband in indirect civil contempt with an arrearage of $78,885 and ordered the husband to pay the wife’s attorneys’ fees. The husband appealed and the appellate court affirmed. At issue was language in the parties’ parenting agreement providing that the husband would pay $700 per month, which was 28 percent of the husband’s net income, and that the husband was required to provide the wife with the husband’s income information on an annual basis and pay additional child support if the income increased. Although the husband made agreed-on increases to the monthly payments over the years, the husband failed to provide required documentation and underpaid based on actual earnings. At trial, the husband claimed to have understood that the child support provision only required additional child support and income documentation in the event the husband found a second job. The trial court rejected the husband’s arguments, which it considered “self-serving and unreasonable,” and found the language in the agreement unambiguous. 2025 IL App (2d) 240303 at ¶12. On appeal, the appellate court held that the parties could not orally modify their agreement because the modification of a child support obligation is a judicial function administered exclusively by court order. The court also rejected the husband’s claims that equitable estoppel barred enforcement, noting that the husband’s failure to tender the required income information led the wife to accept a lesser amount of child support than that to which she was entitled.
9. Attorney disqualification upheld. In a particularly contentious postjudgment case, the trial court in In re Marriage of Hipes and Lozano, 2025 IL App (1st) 240601, disqualified the husband’s attorney under Rules 3.7 and 1.7 of the Illinois Rules of Professional Conduct of 2010. The attorney was also the husband’s mother and a fact witness during a prejudgment hearing. The evidence reflected that the mother had also filed a notice of appeal challenging the court’s findings restricting the husband’s parenting time at the time of the entry of judgment, consulted with the husband’s prior attorneys, and guaranteed payment of fees to the husband’s prior counsel. The appellate court affirmed the disqualification based on Rule 3.7, which provides that an attorney shall not act as an advocate at a trial in which the attorney is likely to be a necessary witness. The court noted that at the time the motion to disqualify was heard, the attorney was not just likely to be a witness but had already been a witness, and disqualification on that basis alone was proper. The court’s opinion also discussed Rule 1.7, which provides that an attorney shall not represent a client if there is a significant risk that the attorney’s personal interests will materially limit representation of the client.
10. Section 508(b) fees upheld as sanctions, but Section 508(a) and child representative fees reversed for lack of ability to pay. The issue of attorneys’ fees was also significant in In re Marriage of Hipes and Lozano, supra. The husband appealed the attorneys’ fees issued against the husband and the husband’s counsel under §508(b) of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/101, et seq., which were affirmed due to the husband’s counsel’s improper continued involvement after disqualification. Further, although contempt findings were entered, they were purged and deemed moot on appeal. As to §508(a) fees and §506(b) fees (child representative), the appellate court affirmed the fee awards to the extent payable from existing assets such as Interest on Lawyer Trust Accounts (IOLTA) funds, tax refunds, and retirement account distributions, but reversed the balance of the awards, holding that the husband lacked the ability to pay given the husband’s modest $40,811 annual income versus obligations exceeding 100 percent of that amount. In its ruling, the appellate court acknowledged that the resolution was “not ideal” for the wife’s attorney or the child representative, who received only approximately 41 percent of their awarded fees, but it ultimately concluded that ordering the husband to pay the remainder of the fees would improperly undermine the husband’s financial stability. 2025 IL App (1st) 240601 at ¶85.
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