Family Law FLASHPOINTS May 2024

Donald C. Schiller, Schiller DuCanto & Fleck LLP, Chicago, Lake Forest & Wheaton
Michelle A. Lawless, Law Office of Michelle A. Lawless LLC, Chicago
312-641-5560 | E-mail Donald Schiller | 312-741-1092 | E-mail Michelle Lawless

Trial Court Finding That Petition for Adult Disabled Child Support Was Untimely Reversed

In In re Marriage of Moriarty, 2024 IL App (1st) 230270, a postjudgment matter, the mother petitioned for adult disabled child support for a child who was a 21-year-old high school graduate who had autism and was still living with her. The mother alleged in her petition that the child was incapable of ever living independently and required long-term financial support due to her disabilities that dated back to at least the age of 6, when the autism diagnosis occurred. The trial court denied the petition as untimely due to the fact that the child was already emancipated at the time the mother filed her petition, and the mother appealed. The appellate court reversed. The petition was not untimely on its face just because the child had turned 18 and graduated from high school because the autism diagnosis had occurred when the child was a minor. Pursuant to §513.5(a) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101, et seq., the disability must have arisen when the child was eligible for support.

Adult Disabled Child Support Awarded After Child Reaches Age of Majority

In a case of first impression, the First District held that a 21-year-old adult, who had graduated from high school but was still living with her mother due to an autism diagnosis, was eligible for adult disabled child support. Moriarty, supra. Pursuant to §513.5 of the IMDMA, 750 ILCS 5/513.5, a “disabled” individual means an individual who has a physical or mental impairment that substantially limits a major life activity, has a record of such impairment, or is regarded as having such an impairment. Section 513.5(a) limits awards to situations as equity may require, for the support of a child of the parties who has attained majority when the child is mentally or physically disabled and not otherwise emancipated. However, arrival at majority and emancipation are two distinct life events and have two distinct meanings. The record indicated that the child was not otherwise emancipated because, despite being of majority age and a high school graduate with a part-time job, she was not mentally able to take care of herself and had not left the protection and influence of her mother’s home. She had not demonstrated the ability to manage her own affairs or to live partially independently or wholly independently.

First District Issues Revised Opinion: In re Marriage of Tener

In February, we reported on In re Marriage of Tener, 2024 IL App (1st) 220890, which concerned an interlocutory appeal in which a guardian ad litem (GAL) was appointed by the divorce court for the wife in the dissolution proceedings. At issue were interim attorneys’ fees, which the trial court awarded to the GAL. The court issued a revised opinion on April 5, 2024, revising its original opinion. The wife had argued that the court order appointing the GAL was void and therefore the trial court had no authority to award interim attorneys’ fees. However, because the wife did not attack the trial court’s personal or subject-matter jurisdiction, she was really arguing that the appointment did not comport with statutory authority. Alleged lack of statutory authority does not deprive the trial court of jurisdiction, resulting in a void order. Additionally, the wife did not appeal the actual appointment order, which did not enable the court to determine whether that order was a step in the procedural progression leading to the appealed fee awards. In its revised opinion, the court removed several paragraphs addressing whether the trial court had inherent authority to appoint the GAL in the dissolution proceeding for a party. It should be noted that the removed language did not change the resulting opinion.

For more information about family law, see ADOPTION LAW (IICLE®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit

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