Family Law FLASHPOINTS November 2021

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

Postnuptial Agreement Affirmed Despite Wife Receiving Less than 30 Percent of Quantified Marital Estate

In In re Marriage of Prill, 2021 IL App (1st) 200516, the wife appealed the ruling of the trial court that the postnuptial agreement she entered into with the husband was valid and enforceable, arguing it was both procedurally and substantively unconscionable. The appellate court upheld. The salient terms of the agreement contained mutual waivers of maintenance and an additional property settlement of $4,000 per month for 60 months to the wife. In addition, the wife received $300,000 in exchange for a quitclaim deed to the marital residence, one of five total investment properties, cash accounts in her own name, 50 percent of joint cash accounts, and several vehicles. The husband kept four rental properties, his retirement accounts, two joint investment accounts, and stock options in his company. The wife argued that she received 28 percent of the marital estate (excluding the value of the stock options), which the husband agreed was accurate. At trial, the wife argued the agreement was procedurally unconscionable because the husband procured the agreement through oppressive and dishonest means by threatening her with custody litigation if she did not accept the terms, dictating how much any lawyer she consulted could make revisions, and bombarding her daily for almost two months to sign. The appellate court relied heavily on the fact that the wife was the party who wanted the marriage to end when it distinguished In re Marriage of Richardson, 237 Ill.App.3d 1067, 606 N.E.2d 56, 179 Ill.Dec. 224 (1st Dist. 1992). It upheld the trial court’s finding that the wife did not lack meaningful choice in signing the agreement because she sought out legal advice but chose not to formally secure representation. With respect to substantive unconscionability, there was no evidence before the court with respect to the value of the stock options so there was no basis for the court to include them in the consideration of whether the agreement was unconscionable. The court held that while the agreement favored the husband, it could not conclude that enforcing it would be inconsistent with the interests of justice. Justice Hyman wrote a lengthy dissenting opinion.

QILDRO Calculation Order Reversed

At issue in In re Marriage of Wehr, 2021 IL App (2d) 200726, was whether a qualified Illinois domestic relations order (QILDRO) calculation order for the husband’s Illinois Municipal Retirement Fund (IMRF) comported with the language of the marital settlement agreement (MSA). The central question was whether the husband was a “participant” in the plan during times he did not work for the municipality or contribute to the plan due to the fact that he had two separate periods of employment with the municipality during the marriage. In calculating the marital portion of the husband’s accrued benefit, the trial court ruled he was a participant even during the months he was not an employee and not contributing. The appellate court reversed. The merits turned on the specific language in the MSA. In deeming the husband a “plan participant” even for months in which he did not earn service credit or contribute to the plan, the calculation resulted in the wife receiving more than 50 percent of the actual marital portion of the accrued benefit. Therefore, the calculation order contravened the intent of the following language of the MSA: “an amount equal to the actuarial equivalent of 50% of the marital portion of [the husband’s] accrued benefit under the plan.” 2021 IL App (2d) 200726 at ¶22. The court noted that the formula in the MSA for calculating the marital portion was essentially the Hunt formula (from In re Marriage of Hunt, 78 Ill.App.3d 653, 397 N.E.2d 511, 519, 34 Ill.Dec. 55 (1st Dist. 1979)), which has been codified in the model QILDRO form supplied under the Illinois Pension Code.

Date Marriage Began Undergoing Irretrievable Breakdown Is Correct Date for Determining Dissipation

In In re Marriage of Sinha, 2021 IL App (2d) 191129, the appellate court reversed the trial court, which declined to find dissipation. The trial court applied the incorrect legal standard in making its determination and should have used the date the parties’ marriage began undergoing an irreconcilable breakdown, not the date the wife filed her petition. While the trial court found that the parties’ marriage was volatile and it was impossible to pinpoint an actual breakdown date, the evidence showed that approximately three months prior to filing the wife had removed $540,000 from an E-Trade account and transferred the money to India in her parents’ names, she had asked the husband multiple times to move out of the marital residence, and the parties had many arguments regarding parenting issues over several months leading up to her filing. The appellate court reversed and remanded with direction for the trial court to reconsider the distribution of marital assets and liabilities, taking into account the wife’s dissipation of assets.

Finding of Imputation of Income to Husband Vacated

In Sinha, supra, the husband appealed the trial court’s finding that he should be imputed $125,000 of annual income for purposes of determining maintenance and setting child support. The appellate court vacated the trial court’s maintenance determination, child support award, and allocation of children’s expenses due to the trial court’s error in imputing such income. There was no evidence presented at trial that the husband could obtain a job earning $125,000 per year other than that was what he had earned back in 2015. While the wife worked at Northern Trust, the husband had stayed at home during the marriage running an online store through which he purchased items for cash from retailers and then sold them on eBay or Amazon. When he no longer had the capital to continue operating the store, he became an Uber driver but was let go. Although he had a medical degree from India, he had failed on multiple occasions to pass the medical boards in the United States. In imputing income to the husband, the trial court erred when it relied on speculation rather than his qualifications, past earnings, or current job opportunities.

For more information about family law, see FAMILY LAW: DISSOLUTIONS OF MARRIAGE COURT PROCEEDINGS (IICLE®, 2021). 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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