Michelle A. Lawless
The Law Office of Michelle A. Lawless LLC
161 N. Clark St. Suite 1700 Chicago, Illinois
Telephone: (312) 741-1092
www.malfamilylaw.com; michelle@malfamilylaw.com.
TOP TEN FAMILY LAW FLASH POINTS OF 2025
- Illinois Supreme Court holds provision in MSA requiring husband to pay wife 50% of the marital portion of his federal veterans’ disability payments was not pre-empted by federal law. The parties were divorced in 1992 and in 2019 the husband filed a petition to terminate the disability payments to wife arguing that such provision in the 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 did not preempt state court enforcement of a MSA wherein husband voluntarily agreed to pay to wife a portion of his benefits. The 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 later. In re Marriage of Tronsrue, 2025 IL 130596.
In re Marriage of Tronsrue - Illinois Supreme Court declines to recognize a cause of action for tortious interference with the parent-child relationship. After the mother of two children successfully regained custody of her children under the Hague Convention, she filed a state court action in Cook County against her former mother-in-law and brother-in-law alleging tortious interference with her custodial rights wherein she sought to recover expenses incurred in the federal district court. Her complaint detailed both of their alleged involvement in the aiding and abetting of the kidnapping of the children. The trial court dismissed those claims and the Appellate Court affirmed since Illinois does not recognize tortious interference with a parent’s custodial rights as a tort. The Illinois Supreme Court affirmed, restating that the Illinois legislature is the proper venue for Illinois to create such cause of action. Hulsh v. Hulsh, 2025 IL 130931.
Hulsh v. Hulsh - Discovery limited in post-judgment modification proceeding when husband admitted he had the ability to pay any reasonable child support ordered. In a post-judgment child support modification proceeding filed by wife, the trial court denied wife’s discovery request for documents relating to husband’s substantial non-marital trust assetsbecause husband admitted he could pay any reasonable amount the trial court ordered. The Appellate Court classified the admission by husband and his counsel at the evidentiary hearing as a judicial admission, but noted that such judicial admission did not prohibit husband from arguing the underlying merits that the requested increase was not warranted. In re Marriage of Knight, 2024 IL App (1st) 230629.
In re Marriage of Knight - Trial court’s denial of post-judgment request for upward modification of child support reversed. Wife sought an increase of a $10,000 per month child support award to $25,000 per month on the basis that since the entry of judgment husband’s income and net worth had substantially increased, and that he and the children were enjoying a substantially increased standard of living compared to the standard of living she could provide the children. The trial court denied the modification on the basis that: (1) Wife failed to demonstrate a substantial change of circumstances uncontemplated by the MSA; and (2) Wife failed to establish an increase in the children’s needs which warranted an increase in child support and the Appellate Court reversed. At the time of the modification hearing husband’s most recent annual incomes were between 25% and 127% higher than the contemplated earnings set out in the MSA. The Court concluded, therefore, that the parties had not contemplated such a substantial increase in husband’s income. The trial court also erred when it ruled that wife failed to establish that there had been an increase in the children’s needs, and it should have considered the standard of living the children would have enjoyed had the marriage not been dissolved. There was no dispute that 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. In re Marriage of Knight, 2024 IL App (1st) 230629.
In re Marriage of Knight - Denial of post-judgment petition for fees and petition for fees related to appeal reversed. Two years after entry of judgment, wife filed a petition for allocation of undisclosed marital assets which resulted in her receiving $130,196 due to husband failing to disclose certain stock options. Husband appealed, wife prevailed on appeal, and she then filed a petition for fees against husband in the amount of $56,755 related to the underlying post-judgment action and a second fee petition in the amount of $24,833 related to her successful appeal. The trial court denied both fee petitions but granted her a sum total of $10,000 due to wife having to file because husband had failed to comply with the judgment without compelling cause or justification. The trial court believed $10,000 was a reasonable amount based on conversations it had with other family law attorneys. The Appellate Court reversed. 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 is not proper evidence. The Court also held that the trial court erred when it did not award 9% statutory interest pursuant to Section 2-1303 of the Code of Civil Procedure. In re Marriage of Hyman, 2024 IL App (2d) 230352.
In re Marriage of Hyman - Beneficial interest designation on retirement account trumped marital settlement agreement (MSA) and ex-wife was entitled to retirement account proceeds upon ex-husband’s death. The Illinois Appellate Court reversed a trial court’s order which granted summary judgment in favor of a decedent ex-husband’s father, who sought to invalidate the expectancy interest of his deceased son’s ex-wife with respect to ex-husband’s retirement accounts. The ex-husband had designated his ex-wife as the primary beneficiary and his father as the secondary beneficiary before their divorce and never changed the beneficiary designations after the divorce. The language of the MSA awarded ex-husband his retirement accounts as his sole and separate property but was silent as to 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 Court distinguished the case at bar from Herbert, 2018 IL App (1st) 172135 which dealt with a MSA which contained specific language “waiv[ing]…all property rights and claims which he or she now has or may hereafter have.” This case underscores the importance of executing revised beneficiary designations post-divorce or including language in the MSA that both parties waive off on any property rights and claims which either party has at the time of the divorce, or which may arise thereafter. Mowen v. Kelly, 2025 IL App 4th 240906.
Mowen v. Kelly - Non-marital character of accounts upheld due to motion in limine being granted. In a dissolution of marriage action, husband failed to identify or produce documentation in discovery supporting his claim that various financial accounts were nonmarital property. As a result, the trial court granted the wife’s motion in limine pursuant to SCR 219(c) brought on the eve of trial barring him from introducing evidence of the accounts’ nonmarital character at trial. The Appellate Court affirmed noting the husband failed to supplement discovery responses prior to the discovery cutoff deadlines and he failed to make an offer of proof regarding the accounts’ origins or tracing of funds at trial. When a motion in limine is granted, an offer of proof is critical to save for review the argument that the exclusion of the evidence was in error. In re Marriage of Xinos and Marino, 2025 IL App (1st) 232326
In re Marriage of Xinos and Marino - Post-judgment child support arrearage affirmed where parties did not memorialize alleged oral agreement to modify support in a court order. In a post-judgment action, wife filed a Petition for Rule to Show Cause against husband for failure to pay child support. The trial court found husband in indirect civil contempt with an arrearage of $78,885 and ordered him to pay wife’s attorneys’ fees. Husband appealed and the Appellate Court affirmed. At issue was language was language which provided that husband would pay $700 per month which was 28% of his net income and that husband was required to provide wife with his income information on an annual basis and pay additional child support if he income increased. Although husband made agreed-upon increases to his monthly payments over the years, he failed to provide required documentation and underpaid based on his actual earnings. At trial, husband argued that he understood the child support provision to only require additional child support and income documentation in the event he found a second job. The court rejected his arguments and found the language was unambiguous and his arguments self-serving and unreasonable. On appeal, the 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 husband’s claims that equitable estoppel barred enforcement noting that husband’s failure to tender his required income information led wife to accept a lesser amount of child support than she was entitled to. In re Marriage of Spangler and DeFauw, 2025 IL App (2d) 240303.
In re Marriage of Spangler and DeFauw - Attorney disqualification upheld. In a particularly contentious post-judgment case, the trial court disqualified husband’s attorney under SCR 3.7 ad 1.7. The attorney was also husband’s mother and a fact witness during a pre-judgment hearing. The evidence reflected that she had also filed a notice of appeal challenging the court’s findings restricting husband’s parenting time at the time of entry of judgment, consulted with his prior attorneys, and guaranteed payment of his fees to his 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. In re Marriage of Hipes and Lozano, 2025 IL App (1st) 240601.
In re Marriage of Hipes - Section 508(b) fees upheld as sanctions, but Section 508(a) and Child Representative Fees reversed for lack of ability to pay. In a post-judgment matter which had been up on appeal twice, the issue of attorneys’ fees was significant. Husband appealed the attorneys’ fees issued against him and his counsel under Section 508(b), which were affirmed due to 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 Section 508(a) fees and Section 506(b) fees (Child Representative), the Court affirmed the fee awards to the extent payable from existing assets such as IOLTA funds, tax refunds, and retirement account distributions, but reversed the balance of the awards, holding husband lacked the ability to pay given his modest $40,811 annual income versus obligations exceeding 100% of that amount. In its ruling, the Court acknowledged that the resolution was not ideal for wife’s attorney or the Child Representative who received only approximately 40% of their awarded fees, but that undermining husband’s financial stability was improper. In re Marriage of Hipes and Lozano, 2025 IL App (1st) 240601
In re Marriage of Hipes