Michelle A. Lawless
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Circuit court lacked subject matter jurisdiction to order husband to pay wife a portion of his military disability benefits due to preemption by federal law.
In a factually complex case, the trial court originally ordered after a trial that husband would be obligated to pay wife a portion of his military retirement benefits, but that if husband took less in his military retirement and received more in his VA disability, that wife would be made whole and he would pay her from his VA disability the difference so she essentially received the same amount as she would have under the military retirement (“VA waiver clause”). The case has been up on appeal twice on various post-judgment motions.For purposes of this appeal, wife filed a petition for rule to show cause against husband for his failure to pay her a certain portion of his military benefits which husband now claimed were his non-marital asset because he was no longer receiving any military retirement, and that all of his payments were now disability pay. Husband raised this affirmative defense at the hearing.The trial court agreed that federal law(10 U.S.C. Section 1408)preempted state law when it came to military disability benefits,and that itprohibited the division of disability benefits in the event of divorce. Therefore, the original judgment’s VA waiver clause was void and unenforceable and it struck the provision from the judgment. Wife appealed and the Fifth District affirmed even though there was no motion to modify the judgment on file at the time of the ruling. The VA waiver clause impermissibly conflicted with federal law and because the judgment’s provision was void from inception, it could be attacked at any time, was not subject to res judicata or state‑law reopening requirements, and could not be ratified or enforced by subsequent agreed orders between the parties.Void orders can be addressed at any time and courts may consider voidness argumentssue sponte.The Appellate Court affirmed the trial court’s order denying the petition for rule and removing the VA waiver clause from the judgment.
Practice note: In its opinion, the Appellate Court distinguished the case of In re Marriage of Tronsrue, 2025 IL 130596. In Tronsrue, the parties had entered into a marital settlement agreement which included language that if the government agencies would not withhold the appropriate amounts and send them to the wife, that husband would pay the amounts directly to wife each month. In that case, the Illinois Supreme Court held that while a court could not order husband to pay a certain amount of disability benefits to his ex-wife, the fact that he agreed to pay that amount was distinguishable. The Illinois Supreme Court stated, “We reiterate that federal preemption is not applicable in a case where the circuit court did not order payment, but instead, the parties entered into an agreement that required the husband to pay the wife disability benefits that he received.”
In re Marriage of Winters, 2026 IL App (5th) 250283.
In re Marriage of Winters
Trial court reversed for imposing restrictions on parenting time without the necessary finding of serious endangerment. Mother filed a post-judgment motion to enforce parenting time and for a finding of contempt on the grounds that father failed to allow her to care for the children during his farm planting season, that he could not provide proper care for the children during the season because of his long work days, and that the parenting agreement provided that during harvesting and planting season she was supposed to be caring for the children while he was working long hours. Mother argued that father was allowing the children to unsafely sit on a tractor (two in one seat) and that they were with him in other unsafe conditions for children on a farm. After a hearing, the trial court ordered that when father was operating heavy machinery that the children would be in mother’s care, but declined to hold father in contempt. Father appealed and the Appellate Court reversed. The trial abused its discretion when it imposed new safety‑based restrictions under the guise of enforcing an agreed parenting plan. The machinery‑based prohibitions were inconsistent with the parties’ prior allocation of parenting time and constituted a de facto restriction without making the required finding of serious endangerment under section 603.10 of the IMDMA. Further, Section 607.5 of the IMDMA may be used to enforce or clarify existing terms, but not to add new substantive conditions that limit how or when a parent may exercise parenting time.
In re Marriage of Williams, 2026 IL App (5th) 241260,
In re Marriage of Williams