Schiller DuCanto & Fleck LLP
Chicago, Lake Forest and Wheaton, Illinois
Telephone: (312) 641-5560; Facsimile: (312) 641-6361:
www.sdflaw.com; dschiller@sdflaw.com
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.
1.Denial of intrastate relocation reversed by Appellate Court. Mother sought to relocate the minor child from the Naperville area to Galesburg, Illinois which was denied by the trial court. The Appellate Court reversed. At trial, the GAL testified that he believed the loss of weekly contact between father and the minor child would adversely reflect their relationship and that a parenting schedule could not be fashioned which would be in the child’s best interest because there could be no parenting time for father other than weekend parenting time. The decision was against the manifest weight of the evidence because the evidence showed that mother’s financial position would be improved due to more affordable housing and assistance from her extended family in Galesburg. Father’s failure to keep current in his child support for over a year made it difficult for mother to make ends meet in the Naperville area. While father’s weekday parenting time was significantly reduced (except during the summer), this did not outweigh the other factors which weighed in favor of the child’s life being improved with a move to Galesburg. The Appellate Court found fault with the trial court’s disregard of father’s child support arrears and his impeached testimony at trial which showed he was earning more income than he had disclosed. It is important to consider whether an objecting parent is financially supporting the child he/she wants to prevent from relocating, and if he/she is not, and the petitioning parent’s request to relocate is so that they can improve the financial condition of the minor child, that should be afforded additional weight. Burmood v. Anderson 2023 Ill App (2d) 230092.
Burmood v. Anderson
2.Wife entitled to maintenance despite waiver in premarital agreement. At issue on appeal was whether the “undue hardship” provision of the Illinois Premarital Agreement Act applied, which would preclude enforcement of wife’s waiver of maintenance in the premarital agreement. Wife entered into the marriage in 1996 with a high school degree earning $25,000. She testified that during the marriage husband did not support her advancing her education so she could increase her earning potential. In 2019 at the time of divorce, she earned $35,000 and had some significant health issues. The undue hardship provision allows the court to award maintenance in spite of a waiver of same in a premarital agreement if there are circumstances not reasonably foreseeable at the time of the execution of the agreement. Husband’s main argument was that it was reasonably foreseeable that the parties would get divorced, which the Court held lacked merit. The premarital agreement statute focuses on the totality of the circumstances at the time of the divorce and whether those circumstances were reasonably foreseeable at the time the parties executed the Agreement. There was sufficient evidence presented that wife’s circumstances at the time of divorce were not reasonably foreseeable at the time the agreement was executed, and the trial court’s determination was not against the manifest weight of the evidence.In re Marriage of Amyette 2023 IL App (3d) 200195.
In re Marriage of Amyette
3.Trial court reversed on calculation of wife’s income for purposes of setting maintenance.Husband appealed the trial court’s determination of a maintenance amount and duration. The Appellate court reversed, noting there was a discrepancy between what wife reported on her Amended Financial Affidavit and her paycheck. The Appellate Court also noted that it was curious that the trial court chose to adopt wife’s original Financial Affidavit which did not accurately reflect her expenses. The Court noted that there was significant inconsistencies among the verbal and written evidence concerning the parties’ incomes and expenses and it was not asking the trial court to reconcile all of the inconsistencies, but that wholly adopting wife’s original Financial Affidavit as fact was an abuse of discretion. The Court remanded for a more detailed analysis of the maintenance calculation to ensure a just result. In re Marriage of Amyette 2023 IL App (3d) 200195.
In re Marriage of Amyette
4.Trial court reversed on designation of real estate as marital property under the terms of the parties’ premarital agreement. Husband appealed the trial court’s finding that a piece of real estate listed as an exhibit to the premarital agreement as husband’s non-marital property was converted to marital property during the marriage, and thereby awarding wife an equity interest in the real estate. The trial court invalidated the characterization of the property as husband’s non-marital property under principles of equity and the Appellate Court reversed. General equitable principles are not one of the Act’s listed grounds for invalidating a premarital agreement. In its ruling the trial court also found that in the alternative, the agreement was unconscionable, but the trial court provided no authority for this ruling. As part of its opinion, the Appellate Court addressed an argument advanced that the parties had an oral postnuptial agreement which involved wife agreeing to use $40,000 from the sale of her non-marital property to pay off husband’s parents’ loan which he used to purchase his non-marital property. Illinois law prohibited the alleged oral postnuptial agreement. Under Section 6 of the Premarital Agreement Act, a premarital agreement may only be amended or revoked by written agreement signed by the parties. Therefore, the agreement was enforceable as written and the property was in fact husband’s non-marital property. The Court noted that wife had been reimbursed her $40,000 by husband at the time she had moved out of the property.In re Marriage of Amyette 2023 IL App (3d) 200195.
In re Marriage of Amyette