The best of 2020: What to know heading into new year

Happy New Year! It obvious that 2020 was a challenging year, personally and professionally, for so many of us, our families, clients and litigants. My New Year?s wish for all is of hope, good health, gratitude, equity, optimism, and prompt resolution of pending and impending divorce cases.

Here are some recent developments in family law for 2021.

1) Parties can cite for persuasive purposes unpublished Appellate Court orders and opinions under Illinois Supreme Court Rule 23.

2) Permissive pension service credit based on time served in the military is marital property where it is purchased with marital funds. (In re Marriage of Zamudio, 2019 IL 124676).

3) The court can use the income-averaging method to calculate an obligor’s income for purposes of maintenance and child support where the obligor’s income fluctuates or is hard to ascertain, or where the obligor’s testimony concerning the decrease in income lacks credibility. (In re Marriage of Gabriel, 2020 IL App (1st) 182710).

4) Where the parties? marital settlement agreement contains a clause providing that maintenance is nonmodifiable under 750 ILCS 5/502(f) of the IMDMA, the court lacks authority to modify it despite one’s claim that there has been a substantial change in circumstances. (In re Marriage of Dynako, 2020 IL App (1st) 192116).

5) Gross income and net income, as defined in 750 ILCS 5/504 and 5/505 of the IMDMA, includes distributions or withdrawals taken from a party’s IRA when the IRA only contains money received via inheritance and said inheritance has not previously been imputed on the party as income for the purposes of calculating child support and maintenance. (In re Marriage of Dahm-Schell, 2020 IL App (5th) 200099).

6) IPursuant to 750 ILCS 5/503(d) of the IMDMA, in dividing marital property, the court should use the same valuation date for the assets of both parties and divide said assets in accordance with the factors listed in 750 ILCS 5/503(d) of the IMDMA. Inconsistent valuation dates can’t be used as a substitute for sanctions for a party’s actions in delaying and stalling the proceedings. (In re Marriage of Budorick, 2020 IL App (1st) 190994).

7) The court is permitted to convert an interim fee award into a judgment in favor of an attorney and enforce an overdue fee order notwithstanding a voluntary dismissal of the divorce case. A party should not derive personal benefit from defying an order of court and then moving subsequently to dismiss the case to escape liability.? (In re Marriage of Keller, 2020 IL App (2d) 180960).

8) Under the Uniform Child-Custody Jurisdiction and Enforcement Act, the court’s failure to make a record of the communication with the judge in the other jurisdiction violates the statutory requirements, which requires reversal. (In re Marriage of Rickett, 2020 IL App (3d) 180657).

9) In reversing the court’s decision that granted a mother’s motion to relocate her children from Illinois to Indiana, the state Appellate Court emphasized, a parent should not be allowed to benefit from such a preemptive decision when they fail to establish that relocating the children to that area is in that parent’s and the children’s best interests.? (In re Marriage of Prusak, 2020 IL App (3d) 190688).

10) A party who suspects, prior to entering a marital settlement agreement, that her spouse was making more money or concealing income and assets prior to entry of judgment, but opts to finalize the settlement agreement and proceed to final judgment instead of pursuing such claims and further investigating her suspicions, is not entitled to vacatur of the divorce judgment under 735 ILCS 5/2-1401. (In re Marriage of Onishi-Chong, 2020 IL App (2d) 180824).

11) The court may make minor modifications to a custody judgment if such modification is in the best interests of the children pursuant to 750 ILCS 5/610.5(e)(2) of the IMDMA. This includes deleting a provision that prevented the parties from filing any motions or petitions related to custody matters unless they first submitted a written report from the parties. psychologist/behavioral parenting coach. (In re Marriage of Wendy S., 2020 IL App (1st) 191661).

12) Pursuant to 750 ILCS 5/505(b) of the IMDMA, interest on unpaid child support begins to accrue 30 days after the missed payment’s original due date, not the date the court first determines the total amount of the arrearage. (In re Marriage of Westlund, 2020 IL App (1st) 190837).

13) In calculating child support and maintenance, the court may consider interest income for a party’s cash assets, charging a portion of the historical rate of return and including a portion of the cash assets one receives as part of the divorce. (In re Marriage of Lugge, 2020 IL App (5th) 190046).

14) A self-represented litigant who has been granted a waiver of fees is also entitled to a waiver of court transcript fees. (In re Marriage of Main, 2020 IL App (2d) 200131).

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