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;

Illinois Supreme Court holds a person who is a partner in a civil union is a “stepparent” under the IMDMA. The Supreme Court of Illinois granted leave to appeal with respect to two certified questions: (1) whether a party to a civil union has standing to request visitation with her deceased partner’s child as a step-parenting and; (2) whether that party has standing to request parental responsibilities. The Appellate Court answered both questions in the negative and the Illinois Supreme Court reversed and remanded. The case began at the trial level with a party to a civil union requesting leave to intervene as a “step-parent” so that she could have visitation and parental responsibilities with her deceased civil union partner’s minor child. Because the legislature expressly stated that the purpose of the Civil Union Act was the provide persons entering into a civil union with the obligations, responsibilities, protections, and benefits afforded or recognized by the law of Illinois to spouses, the legislative intent was clear and unambiguous: The General Assembly intended to create an alternative to marriage that was equal in all respects and, important at the time, open to two persons of the same sex. Therefore, when a child’s parent enters into a civil union with an individual who is not that child’s other parent, that individual becomes the child’s stepparent as defined by the IMDMA. The Court was clear to state that its holding is expressly limited to only those parties who have chosen to enter in a civil union instead of a marriage. Sharpe v. Westmoreland, 2020 IL 124863.

2. Amened statutory maintenance guidelines did not apply to review proceedings because petition for review was filed prior to the effective date of the amendment. The Third District has once again addressed the issue of the appropriate maintenance statute to apply when the relevant petition in question was filed prior to the effective date (January 1, 2017) of the amended statute. In this case, wife filed for a review of her maintenance in August 2015. Husband later moved to terminate maintenance in 2018. The trial court heard both matters at the same time and in reducing wife’s maintenance award found that Section 504(b-8) did not apply because it was not in effect in 2015 when wife filed her petition for review. The trial court reduced wife’s monthly maintenance from $1,000 per month to $675 per month based on husband’s reduction in income which was not in bad faith and wife’s ongoing need for maintenance. Although the current Section 504(b-8) provides guidance on what types of maintenance awards a court can issue upon review and references the statutory guidelines, the statute in effect in 2015 did not contain those statutory guidelines, and therefore, the trial court did not error when it did not apply the guidelines. The Appellate Court’s decision is consistent with the prior case law of In re Marriage of Kuper, 2019 IL App (3d) 180094 and In re Marriage of Harms, 2018 IL App (5th) 160472. In re Marriage of Burdess 2020 IL App (3d) 190342.

3. Reduction in maintenance award upon review upheld. Wife filed a petition for review of maintenance and husband filed a petition to terminate, both which were heard at the same time. The trial court reduced husband’s payment from $1,000 per month to $675 per month for an additional set period of time and ordered a subsequent review. Wife appealed and the Appellate Court affirmed. In its decision, the Court noted that the economics of the case were clear that neither party had the means to continue to live in the lifestyle either were accustomed to living during the marriage. Husband, who was the primary breadwinner of the family during the marriage had a 50% decline in income post-divorce which was not attributable to any bad faith actions, but was the result of an economic downturn in his business. Wife, who had not worked outside of the home during the marriage, did not have the requisite skills to support herself without maintenance from husband. Although the record is not clear how the court calculated husband’s maintenance obligation, the Appellate Court found that husband’s income decreased by 50% and wife’s maintenance was reduced by 32.5%, and therefore affirmed the trial court’s calculations. The Court also upheld the denial of retroactive application of the reduction stating the retroactivity would have been financially debilitating to the wife. In re Marriage of Burdess 2020 IL App (3d) 190342.

4. Denial of motion to modify maintenance award upheld. In a post-judgment matter, husband, the maintenance recipient, brought a motion to increase on the basis that his social security disability benefits had been reduced, his multiple sclerosis (MS) had worsened, and wife’s income had increased. Based on the evidence presented, the trial court denied husband’s motion and the Appellate Court affirmed. The trial court excluded evidence regarding husband’s worsening MS due to the fact that original judgment contemplated his decrease in health at the time the original maintenance award was calculated. The Court upheld the exclusion of such evidence. Further, the evidence actually showed that his social security benefits had increased over the past five years and his expenses had decreased such that he was able to deposit his monthly maintenance payments into a savings account. The decrease in the value of his retirement account was to be expected given his age, and as such could not be considered a substantial change in circumstances. Wife’s increase in income alone could not justify a substantial change in circumstances warranting a modification in his maintenance award. In re Marriage of Dea, 2020 IL App (1st) 190234.