Fertility treatments and agreements for the purposes of preserving fertility down the road have become more commonplace in recent years.  When disputes arise regarding who has control of the embryos, Illinois courts will look to contract law to resolve them.

Embryo

In the case of Szafranski v. Dunston, the parties, Jacob and Karla, began dating in 2009. By mid-March 2010, Karla was diagnosed with cancer and learned that her chemotherapy treatments would most likely lead to infertility. In an effort to create pre-embryos (fertilized eggs which have yet to be implanted into the uterus) with Karla’s eggs and Jacob’s sperm, Jacob and Karla entered into a verbal agreement to undergo in vitro fertilization (IVF) together.  As a result, 3 pre-embryos were created and frozen.

 

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Imagine the following scenario:  Kim and her boyfriend Kanye decide they want to get married.  Kim and Kanye have acquired a lot of money, bling, and swag throughout their years of work in music and promotions.  Kim, being the more cautious one, decides that before she and Kanye get married, they should sign a premarital agreement (better known by some as a prenuptial agreement or “prenup”) to protect herself in the event that fame wreaks havoc on the fledgling marriage.

Money in mout

Kim’s attorney drafts a premarital agreement that provides, among other things, that Kim’s earnings from the businesses which she started before her marriage, including her reality show, clothing line, and promotional appearances, will remain her sole and separate “non-marital” income.   Kim’s attorney gives the agreement to Kanye, who briefly glances at it while laying down a track, and signs it, without having his attorney review it.

 

Three months after the wedding, Kim decides the whole “marriage thing” is not right for her and files for divorce, in Illinois of all places.  During their short marriage, she has raked in a grand total of $3,000,000 in earnings from her various non-marital businesses.  In court, Kanye argues that the premarital agreement should be invalid.  He also argues that, even if it is found to be valid, that Kim’s $3,000,000 in earnings are marital in nature and that he should get half.  What should the result be for poor Kanye?

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It is common for a child support payor to be required to pay a percentage of any additional income above and beyond a base percentage of his or her income.  This additional income may include, for example, bonuses, commissions, or work from side jobs.

Illinois courts define income as “something that comes in as an increment or addition… a gain… that is usually measured in money.”  They have held that income can include a lump-sum worker’s compensation award, military allowance, deferred compensation, and the proceeds from a pension.  Some Illinois courts have also included disbursements from an IRA as income for child support purposes.  In such cases, if the child support payor’s judgment requires him or her to pay 20% of any additional income earned as child support, and he or she withdraws $100,000 from an IRA, the child support payee would be entitled to $20,000 in child support.

ira child support

This is the rule that circuit courts in the Second Appellate District are required to follow.  In the case of Marriage of Lindman, the Second District Appellate Court has held that IRA disbursements constitute income for child support purposes even where the IRA was part of a property settlement.  In the case of Marriage of Eberhardt, the First Appellate District followed this precedent.  This rule seems quite unfair at first blush, because the child support payor did not necessarily “gain” anything in addition to what he or she already had, that is, basically a savings account with tax restrictions.

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Most people know a neighbor, friend, or family member who provides full-time care for a grandchild.  In fact, grandparents raising grandchildren is a growing trend among families in the US.  According to the AARP, nationwide nearly 5.8 million grandchildren live with their grandparents, and it is estimated that over 2.5 million grandparents are raising their grandchildren.  Almost 1 million children live in a home where a grandparent and neither of the child’s parents are in the residence.

grandparent holding child's hand

According to the 2010 U.S. Census, 99,783 grandparents in Illinois are householders who are responsible for the grandchildren that live with them.  7.8 percent of children in Illinois reside with their grandparents in situations where the grandparents are the householders. 109,939 children in Illinois reside in such households where the grandparents are responsible for the children.  Of those, 35,583 Illinois children have no parents in the home at all.

In some circumstances, grandparents are obtaining custody or adopting their grandchildren.  However, the more common scenario is that grandparents are being appointed as legal guardians over their minor grandchildren.

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One thing that occasionally complicates a divorce is when a spouse has an ownership interest in a non-marital business.  Countless hours of hard work have gone into the business, there are stocks and ownership interests involved, or perhaps one spouse has control over the business and the other has none.  There are several important situations to consider when you are going through a divorce and business ownership is involved.  Some of these important implications are addressed below.

business divorce

Contribution and Reimbursement

All property that is acquired by either spouse during a marriage is presumed to be marital property.  This includes income generated during the marriage, even if the income is generated from working at a non-marital business.  For example, if a husband is working at his non-marital business and paying himself a salary of $100,000 per year, his salary is marital property.

 

When a spouse contributes personal effort during a marriage to non-marital property, such as a non-marital business, the efforts may also be deemed a contribution from the marital estate to the non-marital property.  The value of these efforts and contributions, if in the form of retained earnings or assets, can be subject to reimbursement to the marital estate, particularly if the contributing spouse has not been reasonably compensated.  So, if your spouse is paying him or herself a $50,000 salary, but the reasonable salary for the work he or she does is $100,000, the marital estate has a reimbursement claim for the difference.

 

Finally, it is important to note that only the appreciation of non-marital property resulting from significant personal efforts of the spouse are subject to reimbursement to the marital estate.  This means, for instance, that if one spouse has $100,000 in an investment account before the marriage, and at the time of divorce the account is worth $200,000 due solely to favorable market conditions, the marital estate is not entitled to $100,000 reimbursement even though the appreciation occurred during the marriage.

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Circumstances can arise when, for various reasons, a child is not in the possession of one or both of his or her parents and certain non-parents might seek to obtain an allocation of parental responsibilities (formerly known as “custody”) and parenting time (formerly known as “visitation”).  In Illinois, non-parents can have a difficult time attaining their goals, unless certain specific conditions are met.  Generally speaking, section 601.2 of the Illinois Marriage and Dissolution of Marriage Act provides that proceedings related an allocation of parental responsibilities (custody) are allowed:

  1. By a parent filing a petition for divorce or legal separation;
  2. By a parent filing a petition for allocation of parental responsibilities;
  3. By a person other than a parent, only if the child is not in the physical custody of one of his or her parents;
  4. By a step-parent, if certain circumstances are met; or
  5. When one of the parents is deceased, by a grandparent who is a parent or step-parent of a deceased parent, if certain conditions existed at the time of the parent’s death.

This post focuses only on situations that arise under number 3 above, when a non-parent seeks an allocation because the child is not in the physical custody of one of his or her parents.

Imagine that Kourtney and Scott are never married and have three children together.  Five years ago, Scott was thrown in jail for crashing his Lamborghini while highly intoxicated, and eventually convicted.  While Scott was in prison, Kourtney and the children moved in with Kourtney’s mother, Kris.  Kourtney and the kids lived at Kris’ house on and off for the next year or so.

scott

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An issue that often arises during or after a divorce or parentage case is the relocation of the children.  The parents have separated, and each has their own home and parenting time with the kids.  Then, the parent with whom the children reside most of the time (the residential parent) decides that he or she would like to relocate with the kids. Is it permissible?  What duties are owed to the other parent?  What if the other parent objects?

relocation

The law used to distinguish between relocating the children within Illinois and moving out of state.  Those distinctions have been eliminated.  The term “relocation” is now defined in Section 600 of the Illinois Marriage and Dissolution of Marriage Act as:

 

  1. A change in residence from the child’s current primary residence located in the county of Cook, DuPage, Kane, Lake, McHenry, or Will to a new residence within this State that is more than 25 miles from the child’s current residence;

 

  1. A change of residence from the child’s current primary residence located in a county not listed in paragraph (1) to a new residence within this State that is more than 50 miles from his or her current residence.

 

  1. A change of residence from the child’s current primary residence to a residence outside the borders of the State that is more than 25 miles from the current primary residence.

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Until January 1, 2016, Illinois law addressed disputes regarding child-related issues in divorce and parentage cases in terms of “custody” and “visitation.”  The term “custody” referred to both decision-making authority regarding the children (called legal custody), and where the children lived the majority of the time (called residential custody).  The term “visitation” referred to the time the parent who did not have residential custody had with the children.

custody and visitation

If parents were required to consult with one another before making decisions regarding a child’s education, religious upbringing, extracurricular activities, and healthcare, they were said to have “joint legal custody.”  If, however, one parent had decision-making authority over these areas, he or she was said to have “sole custody.”

 

If the children resided with one parent a majority of the time, that parent was said to have “residential custody” of the children.  The other “non-custodial” parent had “visitation” rights.  However, if the parents had reached an arrangement wherein both had time with the children exactly 50% of the time, then the parents were said to have “split custody” or “shared custody.”

 

As of January 1, 2016, that terminology has changed.  Illinois no longer recognizes the terms custody or visitation whatsoever when referring to a parent’s rights. Those legal concepts no longer exist, though the term “visitation” does survive in the context of third-parties, such as with regard to “grandparent visitation.” Having said that, those words have been commonly used for so long that many people, attorneys and judges among them, will have a hard time eliminating those words from their vocabulary.

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For over thirty years, child-related issues of unmarried parents had been governed by the Illinois Parentage Act of 1984.  However, on July 21, 2015, Governor Bruce Rauner signed the Parentage Act of 2015 (the “Act”) into law, which revamped the old version by updating outdated terminology and concepts.  These changes mirror the changes in families and culture over the course of the last three decades.

 

As a brief summary of some of these changes reflected in developments in Illinois law, on June 1, 2011, Illinois established civil unions that allowed same-sex, as well as opposite-sex couples to form unions that were recognized by the state.  Then on June 26, 2013, the U.S. Supreme Court ruled that the United States Constitution allowed for same-sex couples to marry.  The Court ruled that the Defense of Marriage Act, which denied federal benefits to same-sex couples, was unconstitutional in that it defined marriage as between one man and one woman.  See United States vs. Windsor, 133 S.Ct. 2675 (2013).

 

On June 1, 2014 a law took effect that allowed for same-sex marriage in Illinois, and Illinois became one of thirty-seven other states and the District of Columbia to legalize same-sex marriage.  The Illinois General Assembly had proposed same-sex marriage legislation every session from 2007 to 2013, however it was not until November 2013 that the law was passed.  Between November 2013 and the effective date, a court ruled that same-sex couples in Cook County could marry immediately and need not wait for June, which was later extended to other counties.  Parties that had previously entered into a civil union were also able to convert their civil unions in to marriages without a new ceremony or paying a separate fee within the first year. If the union was converted in that time period, the date of the marriage would be retroactive to the date of the civil union.  Now, both same-sex civil unions and marriage are legal in Illinois.

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Imagine the following scenario:  Donald and his wife Melania decide they want to get a divorce.  Donald has been employed as the President of the United States for the past two years, where he earns a salary of $400,000, and receives travel, expense, and entertainment perks.  Melania mostly spends her days shopping on QVC, pampering herself at the spa, and taking tennis lessons while the nanny watches their son, Junior.  In the judgment of dissolution of marriage, the court orders Donald to pay Melania $20,000.00 each month for child support until Junior attains the age of 18.

Donald Face

Two years pass after the divorce, and Donald finds himself running for reelection.  However, because the stress of the first presidency took its toll on Donald, he goes to the barber and gets a buzzcut, in a vain attempt to assert some semblance of control over his life.  Without his signature hairstyle, his polling numbers plummet, and he loses the election in a landslide so dramatic that even Walter Mondale has to laugh.

 

Donald now finds himself out of work, and struggles to find a suitable career in which to apply his unparalleled talent for bombast and bluster.  He applies for a slew of entry level positions on monster.com, to no avail.  Every prospective employer tells him that he’s overqualified.  Destitute and feeling like he’s run out of options, Donald decides to start an extermination business called “Cockroach, You’re a Loser.”  Donald exhibits a newly-discovered knack for the entrepreneurial, and nets a tidy profit of about $25,000.00 in his first full year of business.  Because it is a far cry from his former earnings, Donald files a petition to reduce his child support obligation based on an involuntary reduction in income.  Fearing a drastic reduction in her own standard of living, Melania asks the court to deny Donald’s request.

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