Donald C. Schiller, Schiller DuCanto & Fleck LLP, Chicago, Lake Forest, & Wheaton
Michelle A. Lawless, Law Office of Michelle A. Lawless LLC, Chicago
312-741-1092 | E-mail Michelle Lawless
De Facto Marriage Upheld and Maintenance Terminated Based on Cohabitation; Upward Deviation from Guideline Maintenance Amount Upheld
Dear FLASHPOINTS™ Readers,
I would be remiss to publish this month’s article without recognizing the recent passing of my coauthor and former partner, Donald C. Schiller. If you practiced domestic relations law in Illinois, you knew of Don Schiller. He was a legal visionary, brilliant strategist, and tireless advocate. His many achievements and accomplishments are too numerous to list here, as they were vast. I was honored to coauthor FLASHPOINTS™ with him for almost 14 years. His vision was that they would be a useful tool for attorneys who practiced in the trenches each day. And this month I publish them in his honor and remembrance. — Michelle Lawless.
De Facto Marriage Upheld and Maintenance Terminated Based on Cohabitation
In a postjudgment action in Hunter v. Hunter, 2024 IL App (5th) 230454-U, the trial court terminated a wife’s (the petitioner’s) maintenance based on her continuing cohabitation on a conjugal basis and she appealed the ruling, along with the trial court’s decision that she must reimburse approximately $50,000 in maintenance paid by the husband (the respondent) to the wife during the cohabitation period. 2024 IL App (5th) 230454-U at ¶15. The appellate court affirmed. The wife and her boyfriend were engaged by the time of the hearing, and she had received a $90,000 vehicle from him that was registered in both of their names. 2024 IL App (5th) 230454-U at ¶22. She was also on a health insurance plan through his company as well as his family cell phone plan. Further, she and her fiancé had purchased property together, were in the process of building a home on the property, and held a joint bank account that was primarily used for the construction of their new home. Id. The financial entanglement of the wife and her boyfriend indicated that they were in a de factomarriage since June 2018 and all maintenance payments (with the exception of a few corollary credits) had to be reimbursed to the husband. Id.
Upward Deviation from Guideline Maintenance Amount Upheld
In a postjudgment action in Bartlett v. Quinn, 2024 IL App (1st) 230624-U, a husband (the counter-petitioner) filed a petition to modify or terminate his permanent maintenance obligation in light of anticipated and imminent retirement. The trial court denied his petition, finding that he failed to demonstrate a substantial change in circumstances, and the appellate court reversed. On remand, the trial court upheld the permanent maintenance obligation but modified the award to an above-guideline amount of $807.78. 2024 IL App (1st) 230624-U at ¶3. The trial court further ordered that the husband would receive a credit for the amount he overpaid retroactive to the date of his retirement. Id. The husband appealed, and the case returned to the appellate court. The court acknowledged that it was undisputed that a maintenance award based on the parties’ respective incomes would have yielded a payment of $0 but that the trial court can deviate from guidelines after it considers all §§504(a) and 510(a-5) factors, which it did in this case. The trial court’s award of $807.78 essentially granted the wife (the counter-respondent) her requested maintenance amount. The trial court properly addressed all factors in its decision including but not limited to the wife’s significant medical needs, both parties’ retired status, both parties’ respective assets, and the husband’s good-faith retirement at age 70. 2024 IL App (1st) 230624-U at ¶37. The trial court’s decision to deviate upward to award the wife $807.78 per month, which was her monthly shortfall, was not an abuse of discretion when the husband had significant assets out of which he could pay such support.
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 www.iicle.com/subscriptions.