By: Donald C. Schiller
Schiller DuCanto & Fleck LLP
Chicago, Lake Forest and Wheaton, Illinois
Telephone: (312) 641-5560; Facsimile: (312) 641-6361:;

Michelle A. Lawless
The Law Office of Michelle A. Lawless LLC
161 N. Clark St. Suite 1700 Chicago, Illinois
Telephone: (312) 741-1092;

1.Petition to terminate maintenance based on cohabitation denied in a “close call” decision. In a post-judgment action, husband, who was ordered to pay maintenance for 20 years, filed a petition to terminate maintenance on the basis that wife was cohabitating with her boyfriend. After a lengthy evidentiary hearing involving several witnesses, the trial court denied husband’s petition as a “close call.” The trial court found that husband had established wife was in an intimate dating relationship, but he had failed to establish by a preponderance of the evidence that she was in a de facto marriage. Husband appealed and the Appellate Court affirmed.  In a lengthy opinion which relied heavily on the facts of the case, the Appellate Court noted that the case of In re the Marriage of Herrin, 262 Ill.App.3d 573 has been cited throughout Illinois for its non-exhaustive list of factors which appellate court have used to determine whether a party is in a de facto marriage.  The Court cautioned that the Illinois Supreme Court has not adopted the Herrin factors as the appropriate factors to consider, and this list was never intended to be the only set of factors used in an analysis.  The Appellate Court engaged in a lengthy analysis of the Herrin factors, but noted that the denial of husband’s petition rested on the fact that based on the totality of the circumstances, the relationship was an intimate dating relationship only.  The relationship lacked certain practical and economic characteristics such as commingled finances and a singular mutual household.  The wife’s boyfriend had maintained a rental home for approximately 10 years, one that he had well before the dating relationship began.  Wife continued to maintain her own household and was responsible for paying all of the bills associated with that household.   The couple did not share any bank accounts or credit cards and their life insurance policies listed their respective children as beneficiaries, not each other.  While the couple had a long-term dating relationship where they traveled together and spent holidays together and were often around each other’s children, they were not contemplating marriage, did not have a joint residence, and did not commingle finances.In re the Marriage of Edson, 2023 IL App (1st) 230236.
In re Marriage of Edson

2.Trial court properly granted wife’s motion to dismiss husband’s petition to invalidate the marriage.The parties were divorced after 20 years of marriage and husband was ordered to pay to wife maintenance at $20,000 per month in the parties’ MSA.  Six years after the entry of judgment, wife brought a petition for rule to show cause when husband stopped making the required maintenance payments to her.  Husband filed a petition to invalidate the marriage alleging that his relationship with his former wife began when he was 16 years old; that wife was a high school teacher and advisor of his; and that she used her position to “take dominance and control” over him to sexually assault him on an almost weekly basis when he was a minor.  He further alleged that when he turned 25 the parties married at her insistence and that due to her dominance and control over him, the marriage should be invalidated.  In his request for relief, husband demanded wife disgorge any and all monies and property she received from him under the MSA.  Wife filed a motion to dismiss husband’s petition which the court granted.  Husband filed an amended petition which the trial court also dismissed.  Thereafter, the court denied a motion to reconsider filed by husband.  Husband then filed a motion to terminate maintenance alleging that he had a therapeutic breakthrough in 2020, which was a substantial change in circumstances.  The Appellate Court affirmed the dismissal of husband’s petition to invalidate the marriage.  The facts contained in the judgment directly contradict his petition, namely, that he was under wife’s “dominance and control.”  He was a successful professional who filed a petition for divorce, participated in negotiations while represented by counsel, and entered into a MSA which provided that he was acting of his own free will and without duress.  He also did not plead any facts which showed specifically how wife’s “dominance and control” could have persisted beyond the entry of judgment.  He made no allegations of a mental health diagnosis, repressed memories, or even allegations of how such dominance and control manifested itself in his life. The Court noted that this opinion does not answer the question of whether a verified history of sexual misconduct or grooming might be a sufficient reason to invalidate a marriage under Section 5/301 of the IMDMA under a different set of circumstances.In re Marriage of Andrew, 2023 IL App (1st) 221039.
In re Marriage of Andrew

3.Denial of motion to terminate maintenance upheld.In a procedurally complex post-judgment case (see Flash Point #1), the trial court denied husband’s motion to terminate maintenance.  Husband’s motion to terminate alleged that a therapeutic breakthrough on his part constituted a substantial change in circumstances, which justified termination of his maintenance obligation.  He listed no other substantial change of circumstances in his petition.  The MSA provided that the maintenance was non-modifiable as to amount and duration with the exception of six events: 180 months of payments, either party’s death, wife’s remarriage or entry into a civil union; or wife’s cohabitation.  Husband’s primary counterargument on appeal that he was under wife’s “dominance and control” thereby making the MSA invalid was without merit.  The MSA itself did not provide for modification upon any substantial change of circumstances other than the specific provisions listed therein.  Further, husband did not seek to invalidate the MSA as a remedy to his petition to terminate maintenance, and therefore, he waived this argument on appeal.In re Marriage of Andrew, 2023 IL App (1st) 221039.
In re Marriage of Andrew

4.Trial court correctly denied admittance of proffered testimony at indirect civil contempt hearing.  In a procedurally complex case (see Flash Point #1), at hearing on wife’s petition for rule to show cause for failure to make maintenance payments, the trial court excluded testimony offered by husband in defense of his failure to make the maintenance payments as required under the MSA.  Husband made an offer of proof regarding certain testimony as to why he stopped making the maintenance payments which consisted of the following facts: He did not understand that he had been sexually assaulted when he and wife first had intercourse and still did not understand that years later when he filed for divorce; When he read the recent indictment of Ghislaine Maxwell it triggered him to stop paying maintenance in his own case; and his therapeutic breakthrough in September of 2020 helped him realize that wife had “groomed” him.  The trial court did not admit the aforementioned testimony into evidence and found that he had no justifiable reason to not have made the maintenance payments, and held him in indirect civil contempt. The Appellate Court upheld.The only issue before the trial court at the hearing for indirect civil contempt was whether husband had shown good cause as to why he did not pay the maintenance, since he did not dispute that he had withheld payments starting in 2020.  The proffered testimony would not have made a fact at issue more or less likely true, and therefore, it was properly excluded.  In re Marriage of Andrew, 2023 IL App (1st) 221039.
In re Marriage of Andrew