The highlights of 2019

A look at 10 critical decisions for family law

All in the Family

Celia Gamrath

Celia Gamrath is a judge in the Cook County Circuit Court Chancery Division. She was assigned previously to the Domestic Relations Division and was a family law practitioner earlier.

January 2020

Happy New Year!

Here is a look at some of Illinois’ most significant family law decisions in the law from 2019.

1. In re Marriage of Zamudio, 2019 IL 124676

In Zamudio, the Illinois Supreme Court held a permissive pension service credit, based on time served in the military prior to the marriage, is marital property where the credit was purchased during the marriage with marital funds.

2. Smith v. The Vanguard Group Inc., 2019 IL 123264

In Smith, the Illinois Supreme Court held an agreed-upon injunction that neither party engage in any “transaction” regarding their financial accounts, did not prevent the husband from changing his IRA beneficiary designation from his wife to his sons where the divorce and injunction actions were dismissed and the husband outlived the injunction.

3. In re Marriage of Fatkin, 2019 IL 123602

In Fatkin, the Illinois Supreme Court held an order granting a father’s petition to relocate children out of state was immediately appealable under Illinois Supreme Court Rule 304(b)(6) as a “custody or allocation of parental responsibilities judgment or modification of such judgment.” The Supreme Court then reversed the appellate court’s decision and affirmed the trial court’s judgment granting the relocation petition.

4. Nichols v. Fahrenkamp, 2019 IL 123990

In Nichols, the Illinois Supreme Court held unanimously that guardian ad litems have quasi-judicial immunity from tort liability.

5. Yakich v. Aulds, 2019 IL 123667

On direct appeal, the Illinois Supreme Court vacated a finding by a DuPage County judge that Section 513 is unconstitutional because it violates the equal protection clause of the U.S. Constitution. The Supreme Court held: “While the trial court is free to question the continued vitality of Kujawinski, it lacks the authority to declare that precedent a dead letter.”

6. In re Marriage of Pavlovich, 2019 IL App (1st) 172859

The majority and dissenting opinions in Pavlovich both provide a useful primer for lawyers and judges on the nuances of civil contempt versus criminal contempt. In short, if the purpose of the contempt is to induce compliance with a court order or judgment, then it is civil contempt, and there must be an opportunity to purge the contempt. If the purpose is to punish, then it is criminal contempt, and the procedural protections and due process rights of a criminal defendant apply.

7. In re Marriage of Izzo, 2019 IL App (2d) 180623

In Izzo, the appellate court held an increase of parenting time from 15% to 45% was sufficient to establish a substantial change in circumstances for purposes of modifying child support.

8. Application of the maintenance guidelines in post-decree proceedings

In In re Marriage of Carstens, 2018 IL App (2d) 170183, the 2nd District Appellate Court held the Section 504(b-1) maintenance guidelines apply to motions to terminate or reduce maintenance that are filed on or after Jan. 1, 2016, even where the order sought to be modified or terminated is issued before the guidelines’ effective date. In In re Marriage of Kasprzyk, 2019 IL App (4th) 170838, the 4th District expanded this view by holding the guidelines also apply to review proceedings commenced on or after Jan. 1, 2016. Justice John W. Turner dissented in Kasprzyk, contending the duration guidelines under Section 504(b-1) do not apply in maintenance review proceedings.

9. In re Marriage of Wilhelmsen, 2019 IL App (2d) 180898

In Wilhelmsen, the appellate court affirmed the allocation of Section 513 educational expenses and refused to reduce the husband’s obligation to contribute to his children’s 529 college savings accounts where the parties agreed, as part of the marital settlement agreement, that husband would pay his support arrearages owed to the wife into the 529 accounts.

10. Elimination of maintenance deductibility

As of Jan. 1, 2019, maintenance stopped being deductible by payors and is no longer includible in the gross income of maintenance recipients under the Tax Cut and Jobs Act. However, divorce or separation instruments executed before are then grandfathered in and continue to receive prior tax-deductibility treatment unless a future modification instrument or decree provides otherwise.

In response to the Tax Cut and Jobs Act, the Illinois legislature enacted P.A. 100-923 (eff. Jan. 1, 2019) to make substantive changes to Section 504 governing maintenance. Changes include: The court’s consideration of the tax consequences to each spouse; an adjustment to the percentage calculation of net income in determining maintenance; a means for the court to determine nonguidelines maintenance in certain circumstances; mandates to specify whether maintenance is fixed-term, indefinite, reviewable or reserved and to designate the applicable period; and elimination of unallocated maintenance.

Last year was a big one for family law in Illinois. As the laws continue to evolve, All in the Family will keep you posted.