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
180 N. LaSalle St. Suite 3700 Chicago, Illinois
Telephone: (312) 741-1092
Postnuptial agreement affirmed despite wife receiving less than 30% of quantified marital estate. Wife appealed the ruling of the trial court that the postnuptial agreement she entered into with 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 wife. In addition, wife received $300,000 in exchange for a quit claim deed to the marital residence, one (of five total) investment properties, cash accounts in her own name, 50% of joint cash accounts, and several vehicles. Husband kept four rental properties, his retirement accounts, two joint investment accounts and stock options in his company. Wife argued that she received 28% of the marital estate (excluding the value of the stock options) which husband agreed was accurate. At trial, wife argued the agreement was procedurally unconscionable because 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 wife was the party who wanted the marriage to end when it distinguished the case of In re Marriage of Richardson 237 Ill.App. 3d 1067 (1992). It upheld the trial court’s finding that wife did not lack meaningful choice in signing the agreement, due to the fact that 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 husband, it could not conclude that enforcing it would be inconsistent with the interests of justice. Justice Hyman wrote a lengthy dissenting opinion. In re Marriage of Prill, 2021 IL App (1st) 200516.
In re Marriage of Prill, 2021 IL App (1st) 200516.pdf
QILDRO calculation order reversed. At issue was whether a QILDRO calculation order for husband’s Illinois Municipal Retirement Fund (IMRF) comported with the language of the marital settlement agreement (MSA). The central question was whether 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 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 husband a “plan participant” even for months in which he did not earn service credit or contribute to the plan, the calculation resulted in wife receiving more than 50% 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 husband’s accrued benefit under the plan.” The Court noted that the formula in the MSA for calculating the marital portion was essentially the Hunt formula which has been codified in the model QILDRO form supplied under the Illinois Pension Code. In re Marriage of Wehr, 2021 IL App (2d) 200726.
In re Marriage of Wehr, 2021 IL App (2d) 200726.pdf
The date the marriage began undergoing an irretrievable breakdown is the correct date for determining dissipation. The Appellate Court reversed the trial court wherein it 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 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 wife had removed $540,000 from an ETrade account and transferred the money to India in her parents’ names, had asked husband multiple times to move out of the marital residence, and the parties had many arguments regarding parenting issues 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 wife’s dissipation of assets. In re Marriage of Sinha, 2021 IL App (2d) 191129.
In re Marriage of Sinha, 2021 IL App (2d) 191129.pdf
Finding of imputation of income to husband vacated. 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 husband could obtain a job earning $125,000 per year other than that was what he had earned back in 2015. While wife worked at Northern Trust, husband had stayed at home during the marriage running an online store where 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 husband, the trial court erred when it relied on speculation rather than husband’s qualifications, past earnings, or current job opportunities. In re Marriage of Sinha, 2021 IL App (2d) 191129.
In re Marriage of Sinha, 2021 IL App (2d) 191129.pdf