-Exams are three questions, 90 minutes, the same format as the IL Bar exam.
 Up until the 1970s prenups were rejected as being against public policy
Fletcher v Fletcher (Supreme Court of Ohio, 1994)
628 NE2d 1343
Facts: Dyane and Kenneth signed a prenuptial and then got married. 7 years later Kenneth filed for
divorce and enforcement of the prenup. Dyane argued that the prenup was obtained by fraud and duress and was
therefore invalid. While Kenneth argued that he and Dyane discussed the contents of the agreement Dyane said
that there were no discussions and she did not read it before signing it. The attorney who drafted the agreement
said that Dyane appeared to have read the agreement and he did generally discuss the terms of the agreement at
the signing. Dyane was informed by the attorney that she could have legal counsel at this meeting but she
declined. Dyane testified that the attorney told her that any property accumulated before the marriage would be
divided, however the attorney denies this.
Procedural History: Trail court upheld the prenup. The court of appeals affirmed except to the part of the
judgment that denied spousal support which it reversed and remanded for a determination of support
Law: Prenups enforceable when (1) entered into freely without fraud, coercion, duress, or overreaching,
(2) full disclosure or full understanding of the nature, value, and extent of the prospective spouse’s property,
and (3) the terms do not promote or encourage divorce or profiteering by divorce.
Precedent: Juhasz: the spouse asserting the validity of the contract bears the burden to show that it was
executed after full disclosure of the nature, value, and extent of the proponent’s property or that there was full
knowledge thereof. (Burden shifting) Justified by the fiduciary relationship of the parties and the fact that
antenuptial agreements negate that presumptive rights of a spouse to an equitable distribution of marital assets
upon divorce.
When a nuptial agreement provides disproportionately less that then party challenging it would have
received under an equitable distribution, the burden is on the one claiming the validity of the contract to show
that the other party entered into it with the benefit of full knowledge or disclosure. The burden of proving fraud,
duress, coercion, or overreaching remains with the party challenging the agreement.
Gross: Overreaching is when one party outwits or cheats the other by artifice or cunning, or by
exploiting significant disparity in understanding the nature of the transaction. “Parties must act in good faith
with a high degree of fairness and disclosure of all circumstances which materially bear on the antenuptial
agreement.
Holding: Affirmed the Court of Appeals decision upholding the nuptial agreement and remanding the
issue of spousal support for determination of support.
1. While the agreement does not specifically mention divorce the evidence is sufficient to conclude that the
parties intended the agreement to apply to divorce. 2. Dyane argues that she didn’t know what she was signing,
but she admitted that she refused legal counsel and that the attorney explained to her what was included in the
agreement. 3. Overreaching: The agreement was presented to Dyane the day before the wedding which could
support coercion, but research revealed that it is common practice to present such agreements 11 hours before
the wedding ceremony. Additionally: An agreement signed without counsel is not per se invalid, and mere
regret at an unwise decision does not establish duress, coercion, fraud, or overreaching
Dissent: The holding does not address whether there was actually fraud duress or coercion. To freely sign the
agreement a party must appreciate the rights he or she is forfeiting and must nonetheless agree to give up those
rights. Any ambiguities should be construed against the drafter. A reading of the document doesn’t say it
applies to divorce. Failure to mention the word divorce in the document makes it seem that the non-drafter
signing the document wasn’t thinking about the exact circumstances and rights being forfeited when the
document was signed. Increased value of the stock gained during marriage should be Dyane’s as well
 Test for enforceable prenuptial agreement (1) entered into freely without fraud, coercion, duress, or
overreaching, (2) full disclosure or full understanding of the nature, value, and extent of the prospective
spouse’s property, and (3) the terms do not promote or encourage divorce or profiteering by divorce, and (4)
meaningful opportunity to consult legal counsel
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

Statute of Frauds applies to all prenuptial agreements require promises made in consideration of marriage,
other than promises to marry, to be in writing and signed by the party to be charged.
If there is a disproportionate allocation of property in the agreement, the burden of proving full
disclosure shifts to the party seeking to uphold the contract, but that the burden proving fraud,
duress or coercion remains with the party attacking the agreement
Fiduciary relationship- this is important because there is more trust/disclosure required between both parties at a
higher level. It is generally accepted that engagement creates a fiduciary relationship but that’s not to say you
can’t still have a prenup. However
Simeone v Simeone (SC of PA, 1990)
581 A.2d 162
Facts: 23 year old nurse (Catherine) marries 39 year old surgeon (Fred) with a $90k/ year income and
$300k in assets. Fred gives the papers to Catherine the night before the wedding. Catherine signed without any
counsel and without being advised by Fred’s attorney of any legal rights surrendered by the agreement.
Contested whether Catherine knew the agreement was coming which she denies. Catherine says it is void
because she signed under adverse circumstances.
Procedural History: A masters report upheld the validity of the prenuptial agreement and denied the
claim. Exceptions to the masters report were dismissed by the court of common pleas and thi was upheld by the
Superior Court
Issue: around the interpretation of Geyer. Catherine argues that Geyer was misinterpreted insofar as it
requires disclosure of statutory rights only in cases where there has not been made a reasonable provision for
the spouse. Catherine claims inadequate disclosure and that the payments she got wee less than reasonable
(totaling only $25k as a cut off point)
Holding: Prenuptial agreement enforces and affirmed. Absent fraud, misinterpretation, or duress spouses
should be bound by the terms of their contract. The terms of the present prenuptial agreement must be regarded
as binding without regard to whether the terms were fully understood by the appellant. The reasonableness of a
prenuptial bargain is not a proper subject for judicial review.
If parties viewed an agreement as reasonable at the time of its inception, as evidence by their having
signed the agreement, they should be foreclosed from later trying to evade its terms by asserting that it was not
in fact reasonable. The present agreement contained a clause reciting that”each of the parties considers this
agreement fair, just and reasonable.
However, a full and fair disclosure of the financial positions of the parties is requires. Absent this a
material representation in the inducement for entering into the prenup may be asserted. The present agreement
recited that full disclosure had been made.
Additionally, the evidence revealed that Catherine knew about the prenup agreement prior to its
presentation to her as they had spoken about it on previous occasions. Catherine was neither hesitant or
reluctant to sign the agreement.
 This case provides a strict analysis of prenuptial interpretation. Prenups should be evaluated ljust lik a
contract.
Pendent lite- while the case is pending
Belio v Bellio (2003)
CA Court of Appeal, 105 Cal.App.4th
Issue: Wife contends that the trial court erroneously refused to enforce a premarital agreement requiring
husband to pay her $100,000 upon divorce
Facts: Wife was getting spousal support from her ex-husband, but would lose this upon divorce.
Subsequently the wife wanted a premarital agreement that explained if the marriage terminates due to divorce or
death of her husband she will get $100k either from his or his estate. Both parties signed the agreement and
each was represented by independent counsel.
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Procedural History: Trial court found the provision unenforceable because it encouraged the wide to
seek a dissolution of her marriage and therefore violated public police. The trial court did find that the amount
was reasonable to the circumstances but found that its main purposes and objectives were to insulate the wife
from any potential financial burden or hardship. The court said that the law would be ok but for the policy
considerations.
Holding: The $100,000 payment provision did not threaten the marriage relationship. The provision was
the product of realistic planning that takes into account the possibility of dissolution. The purposes of the
payment provision was to ensure that if the husband died of the marriage was dissolved, the wife would be no
worse off than she would have been if she remained single. Such a provision cannot reasonably be construed as
threatening to induce the destruction of a marriage that might otherwise endure.
 Alimony/ maintenance/ spousal support- ends when the person receiving the support remarries
In IL whatever you accumulate before the marriage you get, but accumulations during marriage are marital
assets
If no will involved your spouse generally gets half of your estate
People who get prenups
-rich
-divorced before
-people with children
750 ILCS 10/1 Illinois Uniform Premarital Agreement Act
 Statute of frauds is included under section 3. The agreement must be in writing
 Section 4-3 says you can explain the rights and obligations upon death or divorce
 Section 10/4-4 Spousal support.
o Caveat: 10/7(b) (b) If a provision of a premarital agreement modifies or eliminates spousal
support and that modification or elimination causes one party to the agreement undue hardship in
light of circumstances not reasonably foreseeable at the time of the execution of the agreement, a
court, notwithstanding the terms of the agreement, may require the other party to provide support
to the extent necessary to avoid such hardship.
o This means that reasonably unforeseeable circumstances
 10/7 is the most important section: The party who is trying to attack the prenuptial agreement must prove
that the agreement was not entered into voluntarily. Can also show that it was unconscionable at the time it
was executed
750 ILCS 10/1 Illinois Uniform Premarital Agreement Act 1990
 Prior to this act the common law was applied
§ 1. This Article shall be known and may be cited as the Illinois Uniform Premarital Agreement Act.
§ 2. Definitions. As used in this Article:
(1) "Premarital agreement" means an agreement between prospective spouses made in contemplation of
marriage and to be effective upon marriage.
(2) "Property" means an interest, present or future, legal or equitable, vested or contingent, in real or
personal property, including income and earnings.
§ 3. Formalities. A premarital agreement must be in writing and signed by both parties. It is enforceable without
consideration.
§ 4. Content. (a) Parties to a premarital agreement may contract with respect to:
(1) the rights and obligations of each of the parties in any of the property of either or both of
them
whenever and wherever acquired or located;
(2) the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create
a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
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(3) the disposition of property upon separation, marital dissolution, death, or the occurrence or
nonoccurrence of any other event;
(4) the modification or elimination of spousal support;
(5) the making of a will, trust, or other arrangement to carry out the provisions of the agreement;
(6) the ownership rights in and disposition of the death benefit from a life insurance policy;
(7) the choice of law governing the construction of the agreement; and
(8) any other matter, including their personal rights and obligations, not in violation of public
policy
or a statute imposing a criminal penalty.
(b) The right of a child to support may not be adversely affected by a premarital
agreement.
§ 5. Effect of marriage. A premarital agreement becomes effective upon marriage.
§ 6. Amendment, revocation. After marriage, a premarital agreement may be amended or revoked only by a
written agreement signed by the parties. The amended agreement or the revocation is enforceable without
consideration.
§ 7. Enforcement.
(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves
that:
(1) that party did not execute the agreement voluntarily; or
(2) the agreement was unconscionable when it was executed and, before execution of the
agreement, that party:
(i) was not provided a fair and reasonable disclosure of the property or financial
obligations of the other party;
(ii) did not voluntarily and expressly waive, in writing, any right to disclosure of
the property or financial obligations of the other party beyond the disclosure
provided; and
(iii) did not have, or reasonably could not have had, an adequate knowledge of the
property or financial obligations of the other party.
(b) If a provision of a premarital agreement modifies or eliminates spousal support and that
modification or elimination causes one party to the agreement undue hardship in light of circumstances
not reasonably foreseeable at the time of the execution of the agreement, a court, notwithstanding the terms of
the agreement, may require the other party to provide support to the
extent necessary to avoid such
hardship.
(c) An issue of unconscionability of a premarital agreement shall be decided by the court as a
matter
of law.
§ 8. Enforcement: void marriage. If a marriage is determined to be void, an agreement that would otherwise
have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.
§ 9. Limitation of actions. Any statute of limitations applicable to an action asserting a claim for relief under a
premarital agreement is tolled during the marriage of the parties to the agreement. However, equitable defenses
limiting the time for enforcement, including laches and estoppel, are available to either party.
§ 10. Application and construction. This Act shall be applied and construed to effectuate its general purpose to
make uniform the law with respect to the subject of this Act among states enacting it.
§ 11. Time of taking effect. This Article applies to any premarital agreement executed on or after January 1,
1990.
August 29, 2006
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If Kids: spouse get 50%
Intestate (no will)
No kids then spouse 100%
Probate Act: Surviving Spouse
Will
(where spouse
left out)
If Kids: Spouse gets 1/3
No kids: Spouse gets 1/2
Statute of Frauds 740 ILCS 80/1
§ 1. No action shall be brought, whereby to charge any executor or administrator upon any special promise to
answer any debt or damages out of his own estate, or whereby to charge the defendant upon any special promise
to answer for the debt, default or miscarriage of another person, or to charge any person upon any agreement
made upon consideration of marriage, or upon any agreement that is not to be performed within the space of one
year from the making thereof, unless the promise or agreement upon which such action shall be brought, or
some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some
other person thereunto by him lawfully authorized.
 EXCEPTION: partial performance- if there is partial performance then the agreement does not have to be in
writing because there is proof of it.
Uniform Premarital Agreements
1. freely and voluntarily signed- no fraud, duress, or coercion or overreaching
2. full disclosure
3. doesn’t encourage divorce
4. opportunity to consult counsel
Barry Bonds Case (page 32 paragraph 10b)- prenup really poorly drafted but upheld upon the wife’s challenge.
Page 70 in the handouts (Drye case?)- Unconscionable- Is an agreement unconscionable when it is so
outrageous in that no reasonable person would make such contract. An unconscionable contract is one that lacks
reasonable choices- they had to choice but to sign the contract which is however unreasonable
Periecho v Periecho (page 8/9)- this was when the man was a millionaire and the woman was a high school
graduate. Prenup said they wont have marital property. Upon divorce the wife would get to keep her jewelry
and the man got all of his money. Turned out the big engagement ring was a fake. Wife claimed fraud in the
prenup. The supreme court of PA was a split decision that the woman should have had the ring appraised.
Illinois Marriage and Dissolution of Marriage Act
 Whatever you acquire after marriage is marital property except gifts, inheritance, etc.
 Property acquired before marriage is non-marital
 Distribution to the family as a homemaker can offset the accumulation of wealth
 Section D= division of property
 Everything you acquire during marriage but before judgment/ dissolution is official is assumed to be marital
property
Illinois Marriage and Dissolution of Marriage Act
Marital Property750 ILCS § 503. Disposition of property.
(a) For purposes of this Act, "marital property" means all property acquired by either spouse subsequent to the
marriage, except the following, which is known as "non-marital property":
(1) property acquired by gift, legacy or descent;
(2) property acquired in exchange for property acquired before the marriage or in exchange for property
acquired by gift, legacy or descent;
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(3) property acquired by a spouse after a judgment of legal separation;
(4) property excluded by valid agreement of the parties;
(5) any judgment or property obtained by judgment awarded to a spouse from the other spouse;
(6) property acquired before the marriage;
(7) the increase in value of property acquired by a method listed in paragraphs (1) through (6) of this
subsection, irrespective of whether the increase results from a contribution of marital property, nonmarital property, the personal effort of a spouse, or otherwise, subject to the right of reimbursement
provided in subsection (c) of this Section; and
(8) income from property acquired by a method listed in paragraphs (1) through (7) of this subsection if
the income is not attributable to the personal effort of a spouse.
(b)
(1) For purposes of distribution of property pursuant to this Section, all property acquired by either
spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of
marriage, including non-marital property transferred into some form of co-ownership between the spouses, is
presumed to be marital property, regardless of whether title is held individually or by the spouses in some form
of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, or community property. The
presumption of marital property is overcome by a showing that the property was acquired by a method listed in
subsection (a) of this Section.
(2) For purposes of distribution of property pursuant to this Section, all pension benefits (including
pension benefits under the Illinois Pension Code) [FN1] acquired by either spouse after the marriage and before
a judgment of dissolution of marriage or declaration of invalidity of the marriage are presumed to be marital
property, regardless of which spouse participates in the pension plan. The presumption that these pension
benefits are marital property is overcome by a showing that the pension benefits were acquired by a method
listed in subsection (a) of this Section. The right to a division of pension benefits in just proportions under this
Section is enforceable under Section 1- 119 of the Illinois Pension Code. [FN2]
The value of pension benefits in a retirement system subject to the Illinois Pension Code shall be determined in
accordance with the valuation procedures established by the retirement system.
The recognition of pension benefits as marital property and the division of those benefits pursuant to a Qualified
Illinois Domestic Relations Order shall not be deemed to be a diminishment, alienation, or impairment of those
benefits. The division of pension benefits is an allocation of property in which each spouse has a species of
common ownership.
(3) For purposes of distribution of property under this Section, all stock options granted to either spouse
after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage,
whether vested or non-vested or whether their value is ascertainable, are presumed to be marital property. This
presumption of marital property is overcome by a showing that the stock options were acquired by a method
listed in subsection (a) of this Section. The court shall allocate stock options between the parties at the time of
the judgment of dissolution of marriage or declaration of invalidity of marriage recognizing that the value of the
stock options may not be then determinable and that the actual division of the options may not occur until a
future date. In making the allocation between the parties, the court shall consider, in addition to the factors set
forth in subsection (d) of this Section, the following:
(i) All circumstances underlying the grant of the stock option including but not limited to
whether the grant was for past, present, or future efforts, or any combination thereof.
(ii) The length of time from the grant of the option to the time the option is exercisable.
(c) Commingled marital and non-marital property shall be treated in the following manner, unless otherwise
agreed by the spouses:
(1) When marital and non-marital property are commingled by contributing one estate of property into
another resulting in a loss of identity of the contributed property, the classification of the contributed property is
transmuted to the estate receiving the contribution, subject to the provisions of paragraph (2) of this subsection;
provided that if marital and non-marital property are commingled into newly acquired property resulting in a
loss of identity of the contributing estates, the commingled property shall be deemed transmuted to marital
property, subject to the provisions of paragraph (2) of this subsection.
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(2) When one estate of property makes a contribution to another estate of property, or when a spouse
contributes personal effort to non-marital property, the contributing estate shall be reimbursed from the estate
receiving the contribution notwithstanding any transmutation; provided, that no such reimbursement shall be
made with respect to a contribution which is not retraceable by clear and convincing evidence, or was a gift, or,
in the case of a contribution of personal effort of a spouse to non-marital property, unless the effort is significant
and results in substantial appreciation of the non- marital property. Personal effort of a spouse shall be deemed a
contribution by the marital estate. The court may provide for reimbursement out of the marital property to be
divided or by imposing a lien against the non-marital property which received the contribution.
(d) Distribution of property: In a proceeding for dissolution of marriage or declaration of invalidity of
marriage, or in a proceeding for disposition of property following dissolution of marriage by a court which
lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court
shall assign each spouse's non-marital property to that spouse. It also shall divide the marital property without
regard to marital misconduct in just proportions considering all relevant factors, including:
(1) the contribution of each party to the acquisition, preservation, or increase or decrease in value of the
marital or non-marital property, including the contribution of a spouse as a homemaker or to the family unit;
(2) the dissipation by each party of the marital or non-marital property;
(3) the value of the property assigned to each spouse;
(4) the duration of the marriage;
(5) the relevant economic circumstances of each spouse when the division of property is to become
effective, including the desirability of awarding the family home, or the right to live therein for reasonable
periods, to the spouse having custody of the children;
(6) any obligations and rights arising from a prior marriage of either party;
(7) any antenuptial agreement of the parties;
(8) the age, health, station, occupation, amount and sources of income, vocational skills, employability,
estate, liabilities, and needs of each of the parties;
(9) the custodial provisions for any children;
(10) whether the apportionment is in lieu of or in addition to maintenance;
(11) the reasonable opportunity of each spouse for future acquisition of capital assets and income; and
(12) the tax consequences of the property division upon the respective economic circumstances of the
parties.
(e) Each spouse has a species of common ownership in the marital property which vests at the time dissolution
proceedings are commenced and continues only during the pendency of the action. Any such interest in marital
property shall not encumber that property so as to restrict its transfer, assignment or conveyance by the title
holder unless such title holder is specifically enjoined from making such transfer, assignment or conveyance.
(f) In a proceeding for dissolution of marriage or declaration of invalidity of marriage or in a proceeding for
disposition of property following dissolution of marriage by a court that lacked personal jurisdiction over the
absent spouse or lacked jurisdiction to dispose of the property, the court, in determining the value of the marital
and non-marital property for purposes of dividing the property, shall value the property as of the date of trial or
some other date as close to the date of trial as is practicable.
(g) The court if necessary to protect and promote the best interests of the children may set aside a portion of the
jointly or separately held estates of the parties in a separate fund or trust for the support, maintenance,
education, and general welfare of any minor, dependent, or incompetent child of the parties. In making a
determination under this subsection, the court may consider, among other things, the conviction of a party of
any of the offenses set forth in Section 12-3.3, 12-4, 12-4.1, 12-4. 2, 12-4.3, 12-13, 12-14, 12- 14.1, 12-15, or
12-16 of the Criminal Code of 1961 [FN3] if the victim is a child of one or both of the parties, and there is a
need for, and cost of, care, healing and counseling for the child who is the victim of the crime.
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(h) Unless specifically directed by a reviewing court, or upon good cause shown, the court shall not on remand
consider any increase or decrease in the value of any "marital" or "non-marital" property occurring since the
assessment of such property at the original trial or hearing, but shall use only that assessment made at the
original trial or hearing.
(i) The court may make such judgments affecting the marital property as may be just and may enforce such
judgments by ordering a sale of marital property, with proceeds therefrom to be applied as determined by the
court.
(j) After proofs have closed in the final hearing on all other issues between the parties (or in conjunction with
the final hearing, if all parties so stipulate) and before judgment is entered, a party's petition for contribution to
fees and costs incurred in the proceeding shall be heard and decided, in accordance with the following
provisions:
(1) A petition for contribution, if not filed before the final hearing on other issues between the parties,
shall be filed no later than 30 days after the closing of proofs in the final hearing or within such other period as
the court orders.
(2) Any award of contribution to one party from the other party shall be based on the criteria for division
of marital property under this Section 503 and, if maintenance has been awarded, on the criteria for an award of
maintenance under Section 504.
(3) The filing of a petition for contribution shall not be deemed to constitute a waiver of the attorneyclient privilege between the petitioning party and current or former counsel; and such a waiver shall not
constitute a prerequisite to a hearing for contribution. If either party's presentation on contribution, however,
includes evidence within the scope of the attorney-client privilege, the disclosure or disclosures shall be
narrowly construed and shall not be deemed by the court to constitute a general waiver of the privilege as to
matters beyond the scope of the presentation.
(4) No finding on which a contribution award is based or denied shall be asserted against counsel or
former counsel for purposes of any hearing under subsection (c) or (e) of Section 508.
(5) A contribution award (payable to either the petitioning party or the party's counsel, or jointly, as the
court determines) may be in the form of either a set dollar amount or a percentage of fees and costs (or a portion
of fees and costs) to be subsequently agreed upon by the petitioning party and counsel or, alternatively,
thereafter determined in a hearing pursuant to subsection (c) of Section 508 or previously or thereafter
determined in an independent proceeding under subsection (e) of Section 508.
(6) The changes to this Section 503 made by this amendatory Act of 1996 apply to cases pending on or
after June 1, 1997, except as otherwise provided in Section 508.
Marvin v Marvin (SC of CA, 1976)
 Principles which should govern the distribution of property acquired in a nonmarital cohabitational
relationship
 Facts: P and D lived together for 7 years, but all of the property acquired during the cohabitation was
acquired in the Defendants name. P sued to enforce a contract for ½ of the property and support payments. P
and D had an oral contract to combine efforts and share all property. They told the public that they were
husband and wife. P was to be t he homemaker, housekeeper and cook, so she gave up her career in return
for D providing for her. Over the marriage over $1 million was acquired. D forced P to leave, but still
supported her from May 1970 to November 1971
 Appeal: P claims that the trail court erred in denying her a trial on the merits of her claim.
 PH: Trial court gave all property to the D and denied P a trial on the merits of her claim
 Holding: Reversed. (1) The provisions of the Family Law Act do not govern the distribution of property
acquired during a nonmarital relationship, (2) The courts should enforce express contracts between
nonmarital partners except to the extent that the contract is explicitly founded on the consideration of
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meretricious sexual services, (3) In the absence of an express contract the courts should inquire into the
conduct of the parties to determine whether that conduct demonstrates an implied contract, (4) The courts
may also employ the doctrine o quantum meruit or equitable remedies.
o A contract between nonmarital partners is unenforceable only to the extent that it explicitly rests
upon the immoral and illicit consideration of meretricious sexuall services
o The fact that a man and woman live together without marriage and angage in a sexual
relationship does not invalidate agreements between them relating to their earnings, property, or
expense.
o A contract is invalid only if sexual acts form an inseparable part of consideration for the
agreement. If sexual services are party of the contractual consideration, and severable portion of
the contract supported by independent consideration will still be enforced.
o A nonmarital partner may recover in quantum meruit for the reasonable value of household
services rendered less the reasonable value of support received if he can show that he rendered
services with the expectation of monetary awards
o The court recognized the implied contract in this case
Page 37: Contracts concerning married life: courts are hesitant to enforce agreements dealing with support or
other conduct during the marriage. Anything other than non-financial matters are very hard to enforce, because
the courts are not going to micromanage the marriage.
Courts generally refrain from enforcing religious agreements: i.e. an agreement to raise the children as a
certain religion is unenforceable. If there is a dissolution
Pension and prenuptial marital agreements (page 20)
1. “Spouse” waives in writing the benefits of
2. New beneficiary of the pension must be named (and the waiver that the spouse consents to the change of the
new beneficiary)
3. Spouse acknowledges effect
4. Witnessed by plan representative or notary public
 Hopkins case said that the agreement was valid even though the “spouse” was technically not a spouse
because they were not married at the time of the signing
There are some areas where federal law preempts state law, but generally speaking the federal courts want
nothing to do with family law. However, if the federal law has intruded (as in employment law) then when there
is a conflict the Federal law usually takes precedence.
When a waiver is not explicit enough the court will not uphold it. The court will uphold the waiver of pension
rights in a marriage settlement (divorce proceedings).
Page 24 of the handouts Johnson v LaGrange State Bank- an old case, but it is still the law as it applies today.
Note 4: Owner of property has an absolute right to dispose of his property during his lifetime in any manner he
sees fit and he may do so even if the precise purpose is to minimize or defeat that statutory marital interests in
the property conveyed.
In this case the parties were married and the husband has independent wealth. During the marriage he
gives his wife a lot of wealth, but they have signed reciprocal wills that leave everything to the other person.
Wife now has a lot of her own wealth because of all of the gifts from her husband as nonmarital property. Under
their reciprocal wills everything goes back to each other. When the wife got ill, she changed her will and gave
everything to her sister’s brothers. The court said that this was ok, because even tho her purpose was to decrease
the statutory interest that her husband had.
**You can only do this with your own property, not with marital property
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Page 25 Vann v Vehers: When they mutually break off their engagement she gets to keep ring back, but its
different in every state
Page 39 of the Casebook:
 Many courts are looking at the breaking of engagement with “no fault.” The courts are getting away from
that and saying they don’t care who breaks the engagement. In this case the ring would go back to the donor
 Case in downstate IL where the woman
 The court said whoever breaks the engagement has to give the ring back
Albengers v Harrison (page 27 in the handouts)- A very rocky relationship. Engagement ring for $30k. She
decides shes going to break it off and mails the ring back to him. He send the ring back to her and wants him
back. She accepts and moves back in. This goes back and forth. He eventually tells her to leave and take her
ring. The court rejects the idea of a conditional gift and gives the ring to the woman
Breach of Contract to Marry- this sort of cause of action has been abolished by most states and most states
don’t have anything remaining about breach of marriage. IL has breach of Promise Act (Chapter 740 ILCS 15
Breach of promise Act 740 ILCS 15/1
§ 1. It is hereby declared, as a matter of legislative determination, that the remedy heretofore provided by law
for the enforcement of actions based upon breaches of promises or agreements to marry has been subject to
grave abuses and has been used as an instrument for blackmail by unscrupulous persons for their unjust
enrichment, due to the indefiniteness of the damages recoverable in such actions and the consequent fear of
persons threatened with such actions that exorbitant damages might be assessed against them. It is also hereby
declared that the award of monetary damages in such actions is ineffective as a recompense for genuine mental
or emotional distress. Accordingly, it is hereby declared as the public policy of the state that the best interests of
the people of the state will be served by limiting the damages recoverable in such actions, and by leaving any
punishments of wrongdoers guilty of seduction to proceedings under the criminal laws of the state, rather than
to the imposition of punitive, exemplary, vindictive or aggravated damages in actions for breach of promise or
agreement to marry. Consequently, in the public interest, the necessity for the enactment of this chapter is
hereby declared as a matter of legislative determination.
§ 2. The damages to be recovered in any action for breach of promise or agreement to marry shall be limited to
the actual damages sustained as a result of the injury complained of.
§ 3. No punitive, exemplary, vindictive or aggravated damages shall be allowed in any action for breach of
promise or agreement to marry.
§ 4. Notice required before bringing action for breach of promise: Within three months from the date that the
breach of promise or agreement to marry occurred, unless such breach occurred prior to the effective date of the
act, any person who is about to commence any civil action in any court for breach of promise or agreement to
marry shall give to the person against whom said action is to be brought, or send in a sealed envelope with first
class postage prepaid and deposited in the United States mail to such person at his or her last known address,
notice in writing, signed by the person who is about to commence said action, giving the date upon which the
promise or agreement to marry was made, and the date upon which the marriage ceremony was to have been
performed, stating the damages suffered by the person signing said notice and stating whether the person
signing said notice is or is not still willing to marry the person to whom the statement is given. If the breach
occurred prior to the effective date of this act the notice herein required shall be served within three months
after such effective date.
§ 5. Action barred unless notice is given: If the notice provided for by Section 4 is not given as provided in that
section, any such civil action for breach of promise or agreement to marry shall be dismissed and the person to
whom any such cause of action accrued shall be forever barred from further suing.
§ 6. Limitations :Actions on promises or agreements to marry shall be commenced within one year next after
the cause of action accrued.
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§ 7. Retroactive effect: This act shall apply to all actions for breach of promise or agreement to marry begun
after the effective date of this act, even though the alleged breach of promise or agreement to marry on which
the action is based occurred prior to such effective date.
§ 8. Criminal laws not affected: Nothing herein contained shall be deemed to repeal or amend any provisions of
the criminal laws of this state.
§ 9. Liberal construction; partial invalidity: This act shall be liberally construed to effectuate the objects and
purposes thereof and the public policy as herein declared. If any section, clause, sentence, paragraph or part of
this act shall for any reason be adjudged by any court of competent jurisdiction to be invalid, such judgment
shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the section,
clause, sentence, paragraph or part thereof directly involved in the controversy in which such judgment shall
have been rendered. If the application of this act, or any part thereof, to any person or circumstance shall be
adjudged by such court to be invalid or ineffectual for any reason, such judgment shall not affect the application
of this act, or part thereof, to any other person or circumstance.
§ 10. This Act shall become effective on January 1, 1948.
Alienation of Affections Act (page 619-621)
 Only 9 states allow this kind of suit
 Heiner v Simpson page 31 of the handouts. After this woman marries her husband (Paul) Paul finds out that
she has had an affair with Tom for 25 years. Paul and woman have 4 children, but it is found out that Tom is
the father of 2 children. Paul is suing for the alienation of Affection
September 5, 2006
Morone v Morone Court of Appeals of NY (1980)
 P alleges that she and D lived together as husband and wife from 1952 to 1980 and had 2 kids. (1) P claims
performance of domestic duties and business services with the expectation of compensation. (2) Partnership
agreement: oral agreement for P to furnish domestic services and for D to do all business transactions, and
(3) D dishonored the agreement and failed to provide support or maintenance, and refused her demands for
an accounting. (The P and D filed joint tax returns.)
 Issue: Whether a contract as to earnings and assets may be implied in fact from the relationship of an
unmarried couple living together rand whether an express contract of such a couple on those subjects is
enforceable
 Holding: Court hold that the express contract of such a couple is enforceable.
o Cohabitation without marriage does not give rise to the property and financial rights which
normally attend the marital relation, Cohabitation does not disable the parties from making an
agreement within the normal rules of contract law
o Absent an express agreement there is no frame of reference against which to compare the
testimony presented and the character of the evidence that can be presented becomes more
evanescent
o The notion of an implied contract between an unmarried couple living together is contrary to NY
decisional law and the implication from our Legislature’s abolition of common law marriage.
Until the legislature determines otherwise the court declines to recognize an action based upon
an implied contract for personal services between unmarried persons living together.
o Express contracts between cohabitants are okay, however implied contracts are not
recognized between cohabitants
Meretricious- defined as of or pertaining to a prostitute; having a harlots traits
Connell v Francisco (page 35 of the handouts)
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Parties were in a meretricious or “marriage like” relationship
Property acquired before the relationship was not marital property, however…
Income and property acquired during the relationship should be distributed as though it is marital property.
Gormley v Robertson (Court of Appeals, Washington, 2004) 120 Wash.App. 31
 Division of property after the end of a homosexual domestic relationship;
o Facts: Resources and property acquired as well as debt were pooled and the P and D shared a
joint account (both women). The house was purchased under Robertson’s name. A loan was
taken from Gormley’s father for $20,000
o Dispute over property arose. Gormley sued Robertson seeking equitable relief based on
constructive trust, implied partnership, joint tenancy, joint venture, conversion, implied contract,
and joint acquisition.
 PH: Trial court applied the meretricious relationship doctrine to this same sex couple in dividing their assets
and liabilities
 Appeal by Robertson: The court erred by concluding the meretricious relationship doctrine was applicable
to this same sex couple
 Holding: Affirmed- It is proper to apply the meretricious relationship doctrine to same sex couples in
dividing their assets and liabilities.
Can you enter into some sort of unconscionability kind of analysis
 Page 57 of Casebook note 6: Wilcox v Trautz (Mass. 1998): The court held that cohabitation agreements are
not subject to the same type of fairness review applied to premarital agreements.
Hendrick v Hendrick (page 30)
 This was in Oklahoma and they wouldn’t allow the amendment of a prenup
 You can cancel or rescind a prenuptial agreement, but you can’t amend one
Illinois Uniform Premarital Agreement Act 1990§ 6. Amendment, revocation. After marriage, a premarital
agreement may be amended or revoked only by a written agreement signed by the parties. The amended
agreement or the revocation is enforceable without consideration.
Palimony- maintenance payments for people who were never married (like alimony but for those who were not
married)
Sopko v Slackman (page 47 in handouts)
 Man was married but also had a mistress. He told his mistress that he would take care of her the rest of her
life. He took care of her for 25 years, but then died. The mistress sued the estate based on the man’s
statements that he would take care of her the rest of her life
 The court said that there was sufficient evidence of his intention therefore the court would provide her with
lifetime support as the man would have wanted
Hewitt v Hewitt (IL, 1979)
 People met at school in Iowa. Iowa recognized common law marriage in Iowa, However they lived in
Illinois which does not recognize these agreements. They had 3 kids and split up so the woman sued for an
equal share of profits and property accumulated by the parties during their relationship.
 The court said that an agreement in consideration of future illicit cohabitation between parties is void, but
that cohabitation by parties may not prevent them from forming valid contracts about independent matters
for which is it said the sexual relations do not form part of the consideration.
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Ayala v Fox (IL, 1990) (pg 39 handouts)
 Unmarried cohabitants and the man proposes building a house. His is the only name on the title. They both
pay for the mortgage and at some times she was making all of the payments. They broke up, but he got the
house (even though she made the payments) because of Hewitt v Hewitt. The court did not want to violate
this law and recognize common law marriage which would be against the law of Illinois.
 The difference between this and Hewitt is that during Hewitt IL did not recognize “no fault divorce.” By the
time Ayala comes along we recognize “no fault divorce” and many commentators thought that this would be
the case to distinguish Hewitt and get with the majority of the country,
Costa v Oliven (IL, 2006)
 Reinforced Hewitt. Couple lived together for 25 years, the man stayed at home with the kids. The woman
became very successful, but she got to keep everything after they broke up because of Hewitt. IL does not
recognize common law marriage.
Salzman v Bachrach (CO, 2000)
 Unjust enrichment
 Even if there is no explicit arrangement, if there was an award to one person of all of the property that
would be unjust enrichment, and not allowable by the court.
 The supreme court held that contributing cohabitants unjust enrichment claim did not depend on sexual
relations and thus public policy did not preclude the claim
 The unjust enrichment theory does not require any promise or privity between the parties; rather, it is
judicially created remedy designed to avoid benefit to one to the unfair detriment of another.
CHAPTER 2: MARRIAGE
Griswold v CT (US S.Ct., 1965) 381 US 479
Right of privacy is a fundamental privacy right entitled through the 14th amendment.
 Griswold, Executive director of planned parenthood and Buxton, professor at Yale’s Medical School and
Director for the League (a medical center) gave information and instruction to married persons as to how
they could prevent contraception. After examination of the wife the two defendants gave information to the
best means of contraception and charged a fee.
 PH: Ds found guilty as accessories and fined $100/each against the claim that the accessory statute as so
applied violated the 14th amendment, Due Process
 CT Laws: “Any person who uses any drug, medicinal article, or instrument for the purpose of preventing
conception shall be fined not less than $50.” And “Any person who assists, abets, counsels, causes, hires, or
commands another to commit any offense may be prosecutes and punished.
 Holding: Convictions reversed.
o A governmental purpose to control or prevent activities constitutionally subject to state
regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade
the area of protected freedoms.
o The married couples and medical staff have a legitimate right to privacy. The law at hand seeks
to have a destructive impact on a relationship protected by the constitutional guarantee of
privacy.
 Concurring (Goldberg- chief justice- and Brennan): relies on the 9th amendment instead of the 14th.
o Fundamental rights are those of such character that it cannot be denied without violating those
fundamental principles of liberty and justice which lie at the base of all civil and political
institutions.
Eisenstadt v Baird (US S.Ct., 1972)
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Baird convicted for using contraceptive exhibits during a lecture on contraception and for giving a woman
vaginal foam to prevent contraception.
The MA statute that Baird was convicted under was unconstitutional under the 14th amendment Due Process
Clause and more significantly Equal Protection. The statute violated the rights of single persons under the
Equal Protection Clause of the 14th Amendment
Right to single people to have access to contraceptives, and the right to privacy of single people
Widely understood as extending to unmarried adults the same sexual privacy rights that Griswold
recognized for married couple
Lawrence v Texas (US S.Ct., 2003)
 TX law violates 14th amendment due process. Distinguished from Bowers because it applied only to same
sex couples (the GA law in Bowers v Hardwick applied to all).
 Overruled Bowers v Hardwick
 The petitioners are entitled to respect for their private lives. The State cannot demean their existence or
control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due
Process Clause gives them the full right to engage in their conduct without intervention of the government.
 Romer v Evans- the court struck down class-based legislation directed at homosexuals as a violation of the
Equal protection clause.
 Concurring- Written by O’Connor because she refused to join the court in overturning Bowers and
expressed that the TX statute violated equal protection by banning homosexual sodomy and not
heterosexual sodomy
Right to Marry
Zablocki v Redhail involved a challenge to a WI statute that denied marriage licenses to individuals with
outstanding child support obligations. Redhail had a kid while in high school and was unemployed and unable
to make child support payments. When Redhail tried to get married there was a substantial arrearage and the
child was receiving benefits under AFDC. The court found that the WU statute unnecessarily infringed on his
right to marry and was unconstitutional. The court reiterated Loving that the freedom to marry is fundamental
and Griswold that protection for marital privacy is implicit in the Due Process clause
FORMALITIES OF CELEBRATION
Accounts Management Inc v Litchfield
SC of SD 1998, 576 NW.2d. 233
 Facts: A widow denied responsibility for her deceased husband’s medical bills contending her marriage
was void for lack of recording with the register of deeds. Submitted application for marriage license and
were married 4 days later. 2 years later Fred had a severe heart attack. Claudia signed the admission consent
form into the hospital as his wife and she obtained guardianship of him until his death from cancer in 1989.
Medical bills totaled over $14,000, and Claudia made consistent payments for 8 years, but stopped paying.
Hospital brought suit for remaining amount.
 Issue: whether failure to record a marriage license invalidates a marriage
 Holding: The court declared the marriage valid and Litchfield financially responsible for her deceased
husband’s medical care because the court construes licensing statutes to favor the validation of marriage.
o Competent evidence of a marriage may be proven by direct of circumstantial evidence. No
record of the marriage can be found with the register of deeds, but Claudia and Frank did take
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out a valid license, exchanged vows in a marriage ceremony, and lived together as a married
couple
o Husbands and wives must stand accountable for each other’s bills when 3rd party creditors
provide necessaries to their respective spouses.
o
750 ILCS 65/15 FAMILY EXPENSE ACT
15(a)(1) The expenses of the family and of the education of the children shall be chargeable upon the property
of both husband and wife, or of either of them, in favor of creditors therefor, and in relation thereto they may be
sued jointly or separately.
(2) No creditor, who has a claim against a spouse or former spouse for an expense incurred by that
spouse or former spouse which is not a family expense, shall maintain an action against the other spouse or
former spouse for that expense except:
(A) an expense for which the other spouse or former spouse agreed, in writing, to be liable; or
(B) an expense for goods or merchandise purchased by or in the possession of the other spouse
or former spouse, or for services ordered by the other spouse or former spouse.
(3) Any creditor who maintains an action in violation of this subsection (a) for an expense other than a
family expense against a spouse or former spouse other than the spouse or former spouse who incurred the
expense, shall be liable to the other spouse or former spouse for his or her costs, expenses and attorney's fees
incurred in defending the action.
(4) No creditor shall, with respect to any claim against a spouse or former spouse for which the creditor
is prohibited under this subsection (a) from maintaining an action against the other spouse or former spouse,
engage in any collection efforts against the other spouse or former spouse, including, but not limited to,
informal or formal collection attempts, referral of the claim to a collector or collection agency for collection
from the other spouse or former spouse, or making any representation to a credit reporting agency that the other
spouse or former spouse is any way liable for payment of the claim.
(b) No spouse shall be liable for any expense incurred by the other spouse when an abortion is
performed on such spouse, without the consent of such other spouse, unless the physician who performed the
abortion certifies that such abortion is necessary to preserve the life of the spouse who obtained such abortion.
(c) No parent shall be liable for any expense incurred by his or her minor child when an abortion is
performed on such minor child without the consent of both parents of such child, if they both have custody, or
the parent having custody, or legal guardian of such child, unless the physician who performed the abortion
certifies that such abortion is necessary to preserve the life of the minor child who obtained such abortion.
o No statute makes recordation essential to legalize a marriage (except Alaska and Oklahoma)
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Common law: husbands and wives are required to pay debts incurred by their spouses or children for
“necessaries.”
Is a marriage which is solemnized without a license or pursuant to a defective license valid? Most cases say
yes- such marriage are valid
Farah v Farah (VA Court of Appeals, 1993)
429 S.E.2d 626
 Facts: Two agreed to get married. Man of Algeria, woman of Pakistan. They got married through signing a
piece of paper which was sufficient in the particular Muslim community. They were then married through
their proxies in England but neither of them were actually present and there was no marriage certificate
issued. A reception was held and they moved to VA where they lived for more than a year. House purchased
jointly. Marriage act of England requires issuance of a marriage certificate, a license and a 15 day residence
by at least one of the parties. None of these prerequisites were held.
 VA Rule: A marriage that is valid under the law of the state or country where it is celebrated is valid in VA
unless it is repugnant to public policy.
 PH: Trial court recognized the marriage and granted equitable distribution
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Holding: Reversed and remanded; trial court erred by declaring the marriage valid based on the finding the
marriage was valid under Islamic or Pakistani law and thus by granting the parties a divorce and by
equitable distributing their property. A proxy marriage celebrated in England will not be recognized as a
valid Marriage in Virginia.
o Because the marriage was contracted and celebrated in England the validity of the marriage is
determined according to English law which is strict regarding statutory formalities. The marriage
was void in England and is void in VA. VA does not recognize common law marriage. With no
marriage there can be no divorce
o It’s the law of the place where the contract was entered into- Lex Loqui Contractus
750 ILCS 5/201. Formalities. A marriage between a man and a woman licensed, solemnized and registered as
provided in this Act is valid in this State.
Haderaski v Haderaski (IL 1953) The court held that even in absence of a license a marriage ceremony
performed by a duly ordained priest resulted in a valid marriage
750 ILCS 5/ 203. License to Marry. When a marriage application has been completed and signed by both
parties to a prospective marriage and both parties have appeared before the county clerk and the marriage
license fee has been paid, the county clerk shall issue a license to marry and a marriage certificate form upon
being furnished:
(1) satisfactory proof that each party to the marriage will have attained the age of 18 years at the time the
marriage license is effective or will have attained the age of 16 years and has either the consent to the marriage
of both parents or his guardian or judicial approval; provided, if one parent cannot be located in order to obtain
such consent and diligent efforts have been made to locate that parent by the consenting parent, then the consent
of one parent plus a signed affidavit by the consenting parent which (i) names the absent parent and states that
he or she cannot be located, and (ii) states what diligent efforts have been made to locate the absent parent, shall
have the effect of both parents' consent for purposes of this Section;
(2) satisfactory proof that the marriage is not prohibited; and
(3) an affidavit or record as prescribed in subparagraph (1) of Section 205 or a court order as prescribed
in subparagraph (2) of Section 205, if applicable.
You only have to get your marriage license the day before in Illinois to get married here.
With each marriage license, the county clerk shall provide a pamphlet describing the causes and effects of fetal
alcohol syndrome.
750 ILCS 5/213. Validity. All marriages contracted within this State, prior to the effective date of this Act, or
outside this State, that were valid at the time of the contract or subsequently validated by the laws of the place in
which they were contracted or by the domicile of the parties, are valid in this State, except where contrary to the
public policy of this State.
**Illinois will not recognize gay marriages from other states
750 ILCS 5/213.1. Same-sex marriages; public policy. A marriage between 2 individuals of the same sex is
contrary to the public policy of this State.
750 ILCS 5/217. Marriage by non-residents--When void. No marriage shall be contracted in this state by a
party residing and intending to continue to reside in another state or jurisdiction if such marriage would be void
if contracted in such other state or jurisdiction and every marriage celebrated in this state in violation of this
provision shall be null and void.
ANNULMENT:
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750 ILCS 5/ 301. Declaration of invalidity--Grounds. The court shall enter its judgment declaring the
invalidity of a marriage (formerly known as annulment) entered into under the following circumstances:
(1) a party lacked capacity to consent to the marriage at the time the marriage was solemnized, either
because of mental incapacity or infirmity or because of the influence of alcohol, drugs or other incapacitating
substances, or a party was induced to enter into a marriage by force or duress or by fraud involving the
essentials of marriage;
(2) a party lacks the physical capacity to consummate the marriage by sexual intercourse and at the time
the marriage was solemnized the other party did not know of the incapacity;
(3) a party was aged 16 or 17 years and did not have the consent of his parents or guardian or judicial
approval; or
(4) the marriage is prohibited.
750 ILCS 5/302 Time of commencement.
(a) A declaration of invalidity under paragraphs (1) through (3) of Section 301 may be sought by any of
the following persons and must be commenced within the times specified:
(1) for any of the reasons set forth in paragraph (1) of Section 301, by either party or by the
legal representative of the party who lacked capacity to consent, no later than 90 days after the petitioner
obtained knowledge of the described condition;
(2) for the reason set forth in paragraph (2) of Section 301, by either party, no later than one year
after the petitioner obtained knowledge of the described condition;
(3) for the reason set forth in paragraph (3) of Section 301, by the underaged party, his parent or
guardian, prior to the time the underaged party reaches the age at which he could have married without needing
to satisfy the omitted requirement.
(b) In no event may a declaration of invalidity of marriage be sought after the death of either party to the
marriage under subsections (1), (2) and (3) of Section 301.
(c) A declaration of invalidity for the reason set forth in paragraph (4) of Section 301 may be sought by
either party, the legal spouse in case of a bigamous marriage, the State's Attorney or a child of either party, at
any time not to exceed 3 years following the death of the first party to die.
750 ILCS 5/304. Retroactivity. Unless the court finds, after a consideration of all relevant circumstances,
including the effect of a retroactive judgment on third parties, that the interests of justice would be served by
making the judgment not retroactive, it shall declare the marriage invalid as of the date of the marriage. The
provisions of this Act relating to property rights of the spouses, maintenance, support and custody of children
on dissolution of marriage are applicable to nonretroactive judgments of invalidity of marriage only.
Proxy marriage a marriage contracted or celebrated through agents who represent one or both parties. These
may or may not qualify as valid common law marriages. This is more common in civil law countries like
Mexico.
Polygamy: First cousins cannot marry in Illinois. If cousins go to another state to get married and they come
back to IL
Staudenmayer v Staudenmayer (PA, 1998) 552 Pa. 253
 Facts: Couple lived together since 1976.. Civil ceremony performed Dec. 16, 1984. Final separation in April
1992. They have one daughter. Man filed for divorce with the result being that there were equitable
distribution proceedings. As a result of a tort settlement in 1982 (tort)-1984 (settled) man got $600/month
with a lump sum of $70,000 in April 2004. Man said this money did not constitute marital property because
it was prior to their wedding in December 1984. Woman claims it was a common law marriage since 1978.
(Joint checking, used last name in 1978, changed IDs, joint tax returns).
 Issue: Whether the Superior court erred when it found the existence of a common law marriage prior to the
ceremonial marriage between the parties.
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PH: Trial court said no marriage until the ceremony and that the woman failed to establish, clearly and
convincingly,. That she and Theodore had a reputation of marriage. The superior court reversed holding that
the woman had established by clear and convincing evidence that they were married sometime before the
structures tort settlement and that the trial court abused its discretion.
Holding: Yes, the superior court erred. Holding reversed and the trial court’s opinion is reinstated that the
parties were not married prior to their ceremonial marriage. Therefore the tort settlement as nonmarital
property. The couple had not previously exchanged the words uttered for the purpose of establishing a
relationship as husband and wife.
o I a putative spouse who is able to testify and fails to prove, by clear and convincing evidence, the
establishment of the marriage contract through the exchange of verba in praesenti, then that
party has not met its “heavy” burden to prove a common law marriage.
o Court reaffirms the notion that common law marriages are disfavored
o Constant cohabitation does not establish common law marriage unless it is coupled with a
reputation of marriage which is not partial or divided but is broad and general
DEAD MAN'S ACT- In the trial of any action in which any party sues or defends as the representative of a
deceased person or person under a legal disability, no adverse part or person directly interested in the action
shall be allowed to testify on his or her own behalf to any conversatin with the deceased of person under
legal disability or to any even which took place in the presence of the deceased of person under legal
disability. you can't bring in the words of the deceased. If you have a dead person and they can't testify to
intent then the court will just look at the other 2 factors of: constant cohabitation and reputation of being
married
Exceptions: The representative of the decedent can open the door to allowing evidence, or if the
decedent gave some sort of deposition before they died
TEXAS says one party must go to court within one year ofseperation in order to get marital property
benefitd
Common Law Marriage is usually achieved by fulfilling 3 factors
(1) Exchange of words in verbal present tense
(2) constant cohabitation
(3) Reputation of being married (held themselves out to the public as being married)
Renshaw v Heckler (United State Court of Appeals, 2nd Cir, 1986)
787 F.2d 50
 Got divorced from respective spouses and started living together in 1958 as though they were married, but
with no formal ceremony. Name change, informed friends and relatives, held themselves out to be husband
and wife. Woman was listed as his wife and beneficiary on the life insurance policy of the decedent.
Wedding band from man to woman. Joint tax returns. One kid. Lived in MD for a couple months. NY for 20
years. On trips to visit family in VA and NC they stayed in PA (same hotel each time). PA recognizes
common law marriages. Couple never met anyone they knew while in PA.
 Issue: Was Renshaw the common law wife of the decedent and therefore entitled to widow’s insurance
benefits?
 Law: Social security act provides that a widow of an individual who died while fully insured is entitled to
widow’s insurance benefits. An applicant is the widow of the insured if the courts of the state in which the
insured person was domiciled at the time of his death would find that the applicant and insured individual
were validly married at the time of the death. (NY law governs this case)
o NY law doesn’t recognize common law marriage, but does recognize it if it is established in
another state. PA law imposes a heavy burden on those who claim a common law marriage
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o PA law says a common law marriage can be created by the uttering of words in the present tense
with the intent to establish a marital relationship. PA law also permits the finding of marriage
based on reputation and cohabitation
PH: Magistrate said he would not find a common law marriage of PA since at best only 16 days of the
decedent’s lifetime were spent in PA and that absent proof of intent to marry while in PA the parties had no
contracts a valid common law marriage in PA
Holding: Reversed and remanded to determine (1) whether Renshaw as the legal widow is eligible for
widow’s insurance benefits and (2) the amount due.
o Court finds hat a NY court would find that the Renshaws had contracted a valid common law
marriage in PA. Renshaw did present proof of cohabitation and reputation. They held themselves
out to be husband and wife to every individual they knew that they saw in PA. The absence of
the present tense intent to create the marriage does not invalidate it.
Lynch v Bowen 681 F.Supp 506 (ND IL 1998) – held that one the basis of IL law that 4 visits to states which
recognized common law marriage, during which about 24 days were spent in those states did not produce a
common law marriage. This was despite the fact the parties lived together 38 years and had 3 children. He
woman was denied social security widow’s benefits on the man’s death
In re Marriage of Moshner: page 69 of the notes: Even though they pretended to be husband and wife, filed
joint tax returns…..
LOOK UP
Iowa 2004 In re Martin page 65: The requirement for a common law marriage of a present intent and agreement
to be married reflects the contractual nature of marriage, however an express agreement is not required.
However the court said that 3 elements must still exist (1) present intent and agreement to be married by both
parties (2) continuous cohabitation and (3) public declaration that the parties are husband and wife.
750 ILCS 5/ 212(a) Prohibited Marriages.
(a) The following marriages are prohibited:
1) a marriage entered into prior to the dissolution of an earlier marriage of one of the parties;
(2) a marriage between an ancestor and a descendant or between a brother and a sister, whether the
relationship is by the half or the whole blood or by adoption;
(3) a marriage between an uncle and a niece or between an aunt and a nephew, whether the relationship
is by the half or the whole blood;
(4) a marriage between cousins of the first degree; however, a marriage between first cousins is not
prohibited if:
(i) both parties are 50 years of age or older; or
(ii) either party, at the time of application for a marriage license, presents for filing with the
county clerk of the county in which the marriage is to be solemnized, a certificate signed by a licensed
physician stating that the party to the proposed marriage is permanently and irreversibly sterile;
(5) a marriage between 2 individuals of the same sex.
750 ILCS 5 § 214. Invalidity of common law marriages. Common law marriages contracted in this State after
June 30, 1905 are invalid.
750 ILCS 5 § 305. Putative spouse. Any person, having gone through a marriage ceremony, who has cohabited
with another to whom he is not legally married in the good faith belief that he was married to that person is a
putative spouse until knowledge of the fact that he is not legally married terminates his status and prevents
acquisition of further rights. A putative spouse acquires the rights conferred upon a legal spouse, including the
right to maintenance following termination of his status, whether or not the marriage is prohibited, under
Section 212, or declared invalid, under Section 301. If there is a legal spouse or other putative spouse, rights
acquired by a putative spouse do not supersede the rights of the legal spouse or those acquired by other putative
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spouses, but the court shall apportion property, maintenance and support rights among the claimants as
appropriate in the circumstances and in the interests of justice. This Section shall not apply to common law
marriages contracted in the State after June 30, 1905.
Chandler v Central Oil Corporations, Inc. SC of KS, 1993, 253 Kan. 50
 Man was shot during a robbery and killed. The issue here is who gets his benefits: his surviving wife, or
common law wife?
 Fred Chandler was married three times and had 3 children with 3 different women. The 2nd and 3rd wives are
at issue here. The 1nd wife was Noletta there were no children born of this relationship. The 2nd wife: Eliza,
began living with the victim in 1969 while he was still married to his first wife. (Divorce of Noletta took
place on June 1, 1973). Eliza didn’t know he was still married, and the divorce became final during the time
they lived together. Fred began living with his third wife, Mary, in 1982 and they were married in 1985.
They lived and remained together until his death in 1988 Both Eliza and Mary claimed to be the surviving
spouse
 Procedural history: ALJ found for Eliza by finding a common law marriage between Fred and Eliza. The
Director of Workmans Compensation affirmed this and upheld that Eliza was the surviving spouse and
entitled to the benefits. The District Court adffirmed for Eliza and noted KS law which recognizes common
law marriage if 3 factors are present: (1) requisite capacity of the parties to marry, (2) present marriage
agreement between the parties, and (3) a holding out of each other as husband and wife to the public.
 Court of Appeals Reversed and Remanded: It held that both Mary and Eliza had the burden to prove by a
preponderance of evidence that they were entitles to benefits as Fred’s surviving Spouse. Court of Appeals
relied on Harper v Dupree and reversed and remanded the case with directions to the district court to (1)
apply the presumption of validity to the marriage of Fred and Mary and then permit Eliza the opportunity to
rebut such presumption and (2) after deciding which of the claimants was the wife of the worker at the time
of his death determine how the vbenfit for depenent children/ step children should be divided.
 MARY: Mary relied on the decision in Harper v Dupree in which the court held as the majority view that a
second or subsequent marriage of a person is presumed valid and hat such presumptions stronger than and
overcomes or rebuts the presumption of the continuance of the previous marriage and that the burden of
proving the continuance of the previous marriage, and the invalidity of the second marriage, is upon the
party attacking the validity of the subsequent marriage, The court said that the burden of proving that a
divorce has not been granted to either party to a former marriage is substantial and is not met by proof of
facts from which mere inferences may be drawn
 Holding: This court affirmed the judgment of the court of appeals and reversed and remanded the decision
of the district court. Where an attempt is made to annul a marriage on the ground of a prior subsisting
marriage of the other party, the presumption of lavdity of the subsequent marriage is stronger than and
overcomes the presumption of the continuance of the previous marriage, and one who seeks to impeach the
subsequent marriage assumes the burden of proving by evidence “So cogent as to compel conviction,” that
the previous marriage as not been dissolved
o Eliza has the burden of proving the invalidity of the marriage of Mary and Fred, every
reasonable possibility of validity of that marriage must be negated and Eliza’s evidence of a
continuing common law marriage to overcome the presumption of validity of the subsequent
marriage must be clear, strong and satisfactory and so persuasive as to leave no room for
reasonable doubt.
750 ILCS 212(b) Parties to a marriage prohibited under subsection (a) of this Section who cohabit after
removal of the impediment are lawfully married as of the date of the removal of the impediment.
I.E.- once the divorce becomes final the second common law marriage takes effect
Other presumptions may follow from the fact that a marriage has been proven i.e. good faith, performed by a
person with appropriate authority, parties had the capacity to marry
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USUALLY that the second marriage is assumed to be the one in effect. However, in Ohio there is a
presumption that the status of the marriage of the first parties continues and the second wife has to disprove.
ILLINOIS: Sparling v Industrial Commission (1973)- In absense of evidence to the contrary, presumption of a
previous divorce will arise in ordr to sustain a second marriage, but presumption may be rebutted by evidence,
which, standing alone, affords reasonable grounds for concluding that no divorce has been secured.
Presumption of the second or subsequent marriage is the one assumed to be valid
Dolan v Celebrezze (US Court of Appeals, Second Circuit, 1967, 381 F.2d 231
 Mrs. Dolan was denied insurance benefits as the widow of John Dolan.
 DOlans were married and lived together, but John Dolan went to work in Peru. After a time there he came
back to the US and brought his wife and son with him to Peru so he could continue working there. Mrs.
Dolan didn’t like the climate so she moved back to the US with her son. During their first year back (1927)
they received messages and monetary support from John. Dolan’s lost contact and John became MIA. Mrs.
Dolan and her son, John Howard, were forced to live with family and friends because they had no money.
Ultimately in the mid 1930s Dolan moved in with a new man, Reilley who provided for herself and her son
John Howard. John Dolan came back from Peru in 1936 and visited with his son, but not with his wife.
Filling out his social security information he indicated that he was single, not divorces, and named his son as
his beneficiary but listed his son as being his “nephew.” John worked in an art gallery and told people that
he was separated and that John Dolan was the result of his marriage,
 Mrs. Dolan remarried around 1942 to Reilly. She thought that after 7 years of separation without any
support that she was free to remarry. Reilly died in 1949 and Mrs. Dolan obtained a lump sum benefit from
Reilly’s employer. Two years later John Dolan arrived at her home and moved back in. They began living
together and John started contributing to the household. John Dolan died in 1962.
In Re May's Estate Court of Appeals of NY, 1953 (305 NY 486)
 Issue: Validity of a marriage between a man and his niece
 Marriage resulted in 6 kids. P (husband) believes that he should be the administrator of his wive's estate.
The couple was domiciled in NY, but married in RI where it is legal for a an uncle and neice of the Jewish
faith to get married. After they were married they moved back to NY.
 Surrogate court said that the RI marriage was opposed to NY natural law and domestic relations so therefore
P doesn’t qualify as the administrator of the estate. Appellate ourt reversed and remanded for P
 The marriage would not be upheld if (1) there was a positive statute that said it would not be recognized or
(2) whether it violated the natural law
 Holding: Affirmed in favor of P
 Van Voohris v Brntnall said that marriage is valid in NY if it is valid in the place it is celebrated; the
rights dependent upon nuptial contracts are to be determined by the lex loci
 Absent any NY statute expressing clearly the legislature's intent to regulate within this state
marriages of its domiciliaries solemnized abroad thee is no positive law in this jurisdiction which
serves to interdict the 1913 marriage in RI .
 Such marriage solemnized as it was, in accordance with RI law and the Jewish faith, is not
offenseive to the public sense of morality to a degree to be prohibited by natural law
Mason v Mason (Indiana, 2002)- recognizing the validity of a Tennessee marriage between cousins
IL Marriage Evasion Act- IL doesn’t recognize marriages prohibited under IL Law- this is not approved by
Nationals Conference of Commissioners on Uniform State Laws
Adoptive Relationships
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- The court found unconstitutional a statute in Colorado that prohibited adoptive brothers and sisters from
getting married
**This is not the case in Illinois
Criminal Sanctions
 NC law held no criminal violations occurred when a father had sexual relations with his adopted daughter
 GA law said "After entry of a final decree of adoption the person adopted shall be, to all intents and
purposes, the child of the petitioner. He shall be entitles to all the rights and privileges and be subject to all
the obligations of a child born in lawful wedlock to petitioner.
Estoppel (page 98)- there are strong public policy reasons for upholding the validity of marriages, particularly
where the challenge is raised by one of the parties to the marriage.
In Yun v Yun the court rejected the idea that a marriage was void where a license was properly obtained
prior to the ceremony. The court held that he should be equitably estopped from denying the validity of the
marriage.
Legal separation stops the agreement of marital property
VJS v MJB 249 N.J.Super 318 (1991, Superior Court of NJ)
 Annulments are allowed when one spouse insists on having children contrary to an express agreement prior
to marriage to not have children
 Where the marriage has been consummated, the fraud of D will entitle P to an annulment only when the
fraud is of an extreme nature, going to one of the essentials of marriage
 Couple got married. Wife didn't want to have kids and husband agreed. Upon marriage D would not use
protection during intercourse and voiced that he wanted to have children
 D committed fraud as to an essential of the marriage contract
 Essentials of marriage decided on a case by case basis.
 Procreation is considered to be an essential element of the marriage
 D's premarital uncommunicated intent to have children precluded P from consenting to the marriage upon
the express terms agreed upon between thee parties. If D's true intention to have children was made known
to P she would not have married him.
 Where P in entering the marriage relied on the express intention of the D not to have children it would be
patently unfair and contrary to all notions of justice for the court to recognize a marriage between the parties
where D's fraud induced the P to consent
 The concealment prior to the marriage of an intent to have children contrary to an expressed
antenuptial agreement not to have children is fraud which goes to the essentials of the marriage and
the alleged marriage between the parties is null and void.
 TEST: would they have gone through the marriage if they knew about the hidden thing
 ILLINOIS: Subjective standard in considering the facts of the particular marriage
objective standard. A legal standard that is based on conduct and perceptions external to a particular person. •
In tort law, for example, the reasonable-person standard is considered an objective standard because it does not
require a determination of what the defendant was thinking.
subjective standard. A legal standard that is peculiar to a particular person and based on the person's
individual views and experiences. • In criminal law, for example, premeditation is determined by a subjective
standard because it depends on the defendant's mental state.
§ 301. Declaration of invalidity--Grounds. The court shall enter its judgment declaring the invalidity of a
marriage (formerly known as annulment) entered into under the following circumstances:
(1) a party lacked capacity to consent to the marriage at the time the marriage was solemnized, either
because of mental incapacity or infirmity or because of the influence of alcohol, drugs or other incapacitating
22
substances, or a party was induced to enter into a marriage by force or duress or by fraud involving the
essentials of marriage;
(2) a party lacks the physical capacity to consummate the marriage by sexual intercourse and at the time
the marriage was solemnized the other party did not know of the incapacity;
(3) a party was aged 16 or 17 years and did not have the consent of his parents or guardian or judicial
approval; or
(4) the marriage is prohibited.
§ 302. Time of commencement. (a) A declaration of invalidity under paragraphs (1) through (3) of Section
301 may be sought by any of the following persons and must be commenced within the times specified:
(1) for any of the reasons set forth in paragraph (1) of Section 301, by either party or by the legal
representative of the party who lacked capacity to consent, no later than 90 days after the petitioner obtained
knowledge of the described condition;
(2) for the reason set forth in paragraph (2) of Section 301, by either party, no later than one year after
the petitioner obtained knowledge of the described condition;
(3) for the reason set forth in paragraph (3) of Section 301, by the underaged party, his parent or
guardian, prior to the time the underaged party reaches the age at which he could have married without needing
to satisfy the omitted requirement.
(b) In no event may a declaration of invalidity of marriage be sought after the death of either party to the
marriage under subsections (1), (2) and (3) of Section 301.
(c) A declaration of invalidity for the reason set forth in paragraph (4) of Section 301 may be sought by either
party, the legal spouse in case of a bigamous marriage, the State's Attorney or a child of either party, at any time
not to exceed 3 years following the death of the first party to die.
A marriage cannot be held invalid after the death of one of the parties to such marriage
In Re Estate of Crockett: Proxy marriages are not valid (proxy- one of the parties is physically not there)
In re Estate of Bartolini- even an invalid marriage (invalid because the husband was still married to another
woman but the new wife didn't know) would render children of the couple legitimate
§ 303. Legitimacy of Children. Children born or adopted of a marriage declared invalid are the lawful children
of the parties. Children whose parents marry after their birth are the lawful children of the parties.
Haacke v Glenn 814 P.2d 1157 (Utah Court of Appeals, 1991)
 P was denied an annulment but granted a divorce. She appeals this decision because she wants an
annulment, not a divorce
 P was an attorney for the department of corrections. D deliberately and intentionally concealed and hid from
P that he was convicted of second degree felony in Alabama. He told P that he had to go to Alabama to take
care of prior child support obligations. P didn't become aware of his convictions until she was informed by
her employer. Employer terminated P based on such conflict of interest and said that P would be
reconsidered for re-employment if her current circumstances were to change and thereby eliminating the
conflict of interest, but later said that even if she did dissolve her marriage there would have to be an
investigation as to whether P was aware of D's criminal record prior to the marriage
 PH: Court refused to grant an annulment and granted a divorce instead
 LAW: Utah statute said that there are 2 grounds for annulment (1) marriages that don't conform to Utah
state law and(2) allows annulment upon grounds existing at common law
o Under common law a marriage could be annulled for a fraud going to the essence of the marriage.
The fraud must be such that directly affects the marriage relationship rather than "merely such fraud
as would be sufficient to rescind an ordinary civil contract… the fraud must be so material to such a
degree that had the deceived party known of the fraud he or she would not have consented to the
marriage
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
Holding: The original false representations and concealments by Glenn so violated the essential purpose of
the marriage that Haacke is entitled to an annulment.
Goodridge v Department of Public Health 440 Mass. 309 (MA Supreme Judicial Court, 2003)

 Issue: Whether, consistent with the MA Constitution, the Commonwealth may deny the protections,
benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to
marry
 Holding: The MA Constitution may NOT deny the protections, benefits, and obligations conferred by
civil marriage to two individuals of the same sex who wish to marry.
o Thee court analyzes the rational basis test, so the state has to prove that there is a rational basis
for such legislation and the means of the legislation achieve the purpose/ rational basis of the
law.
o State says that the law
Defense of Marriage Act (DOMA)- passed in 1996 before Goodridge, but was passed after a similar case in
HI.
Provides that " no state, territory, or possession of the US, or Indian tribe, shall be required to give effect
to any public act, record, or judicial proceeding of any other State, territory, possession or tribe respecting a
relationship between persons of the same sex that is treated as a marriage under the laws of such other State,
territory, possession, or tribe, of a right or claim arising from such relationship
Marriage Recognition
Baehr v Lewin 74 Haw 530- the first state supreme court decision to suggest that laws prohibiting same
sex marriage might be unconstitutional. This case ultimately became moot because HI banned same sex
marriages.
Civil Union and Domestic Partnership
Baker v. State of Vermont 170 Vt. 194 (1999)- the Vermont supreme court held that state laws limiting
marriage to opposite sex couples violated the Common Benefits Clause of the Vermont Constitution. The court
left it up to the legislature whether to extend full marriage rights to same sex couples or establish an alternative
legal status that would extend to same sex couples the same benefits and protections afforded by Vermont law
to married couples. Legislation was enacted to provide for civil unions. Parties to civil unions must dissolve
through a divorce in a family court.
September 22, 2006
Hall v Nevada page 87 in the handouts- Hall got into an accident while driving, and Nevada said that they have
a statute to limit any sort of remedy for personal injuries to $125,000. Nevada asked California to uphold this
The full faith and credit clause does not require a state to apply another state's law in violation of
its own legitimate public policy.
**This is why same-sex marriage is not upheld in states other than MA and VE
Rosengarten v Downes (2002)- Two men went to Vermont and got a civil union, and then went back to CT
where they provided. One of the med filed in CT for dissolution of their civil union entered into in Vermont.
The court said that nothing in CT law recognizes a civil union, so the court didn't have toe stablish new
procedures where it did not provide for it.
Party seeking dissolution of foreign same sex civil union had significant set of contacts with CT, and
thus CT law, not law of state where union was granted, could be applied without violating Full Faith and Credit
Claude, because party was resident of CT, party had chosen CT court as a forum in which to seek dissolution,
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and neither party to union had any significant contact with other state except for entering into civil union in that
other state
Sex Change- See handout pages 109-113
Man became and woman, and later married a man. The husband died, with widow (woman) surviving.
The dead man had a son from a previous relationship. The Woman is not allowed to keep the child because this
would be against public police (Supreme Court of KS)
Any marriage that is not between people of opposite sex, as determined at the time of birth, is invalid
ILLINOIS- does not acknowledge marriages between people with sex-changes valid (see page 115 of handouts)
Married couple. Husband was born a woman. There was a child of the relationship, and upon divorce,
the rights of the Husband(woman) were terminated
September 26, 2006
DIVORCE
Desrochers v. Desrochers- 1975 NH—irrespective of fault—irreconcilable differences that has caused an
irremediable breakdown—NH has a statute that precludes divorce if there is a chance of rehabilitation—one
wanted to get married and one did not- here the court said that a two year separation—shows it is irreconcilable

Adultry, desertion of a year, extreme mental or physical cruelty—these were usually the only fault
grounds—today in Illinois we still have these as a ground for divorce, as well as no fault—in Illinois you
must use a fault basis if you would like to get divorce immediately (waiting time is waived) otherwise there
is a waiting time
IRMO Smoller-Ill 1991---husband is granted divorce for irreconcilable differences even when wife wanted to
stay married. Husband testified he did not love wife, did not want to be married to her and would not try to
reconcile.
Lehmen v. Lehmen-OH 1991- wife could not get a divorce for incompatibility—husband denied there was
incompatibility
IRMO Kenik- IL-1989- bifurcated judgment—couple had lived separately and apart in all ways, even though
under same house, as required by Illinois law in order to receive a dissolution of marriage judgment.
Norviel v. Norviel- Cal 2002- must physically live in separate residences to be considered living “separate” and
“apart." Living together in the same home was not living apart. They maintained joint bank accounts and credit
cards, they acquired real property as husband and wife, they had a family vacation, occasional family means and
outings, and husband sent flowers and a card to wife on the couple's anniversary.
IRMO Escatel –Il 1992- Trial court's findings that, without cause of provocation by husband, wife was guilty of
mental cruelty towards the husband and that, without cause or provocation by the wife, husband had been guilty
of extreme and repeated mental cruelty towards the wife were inconsistent and contradictory and against the
manifest weight of the evidence.
Only one party can be at fault.
Covenant Marriages- pg655: Legislators in a number of states have offered bills to repeal or modify no fault
divorce laws. Louisiana passed law in 1997 to create two different kinds of marriage and divorce. First, existing
prior to the act, authorized divorce when the parties had lived separate and apart for 6 months, with other
grounds based on fault. The second known as covenant marriage was made available at the parties' election;
25
persons contracting a covenant marriage may be divorced only on fault grounds or if they have lived separate
and apart for two years (or for one year following a legal separation).
September 29, 2006
No Fault Grounds-irreconcilable differences (33), incompatibility (7), separation (10)
§305 Irreconcilable differences/ Irretrievable Breakdown
(a) IF both of the parties by petition or otherwise have stated under oath or affirmation that the marriage
is irretrievably broken, or one of the parties has so stated and the other has not denied it, the court, after hearing,
shall make a finding whether the marriage is irretrievably broken,
(b) If one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the
court shall consider all relevant factors, including the circumstances that gave rise to filing the petition and the
prospect of reconciliation, and shall:
(1) make a finding whether the marriage is irretrievably broken; or
(2) Continue the matter for further hearing not fewer than 30, nor more than 60 days later,
or as soon thereafter as the matter may be reached on the court's calendar, and may
suggest to the parties that they seek counseling. The court, at the request of either party
shall, or on it's own motion may, order a conciliation conference. At the adjourned
hearing the court shall make a finding whether the marriage is irretrievably broken.
(c) A finding of irretrievable breakdown is a determination that there is no reasonable prospect of
reconciliation.
Traditional grounds for divorce: Adultery, desertion, cruelty, living separate an apart, incompatibility, misc.
grounds.
 Living Separate and Apart- non fault ground for divorce
Traditional defenses to divorce: collusion, connivance, condonation, and recrimination
 Collusion- if the parties somehow agreed that one of them will not defend the suit, or appeared to
commit an adulterous offense in order to enable the divorce to be obtained
o 5/§ 408. Collusion--Assent or consent of petitioner. If it appears, to the satisfaction of the court,
that the injury complained of was occasioned by collusion of the parties, or done with the assent
of the petitioner for the purpose of obtaining a dissolution of marriage or legal separation or
declaration of invalidity of marriage, or that the petitioner was consenting thereto, then no
dissolution of marriage or legal separation or declaration of invalidity of marriage may be
adjudged.
 Connivance- when the P consents to the D's commission of the marital offense
 Condonation- occurring when there is a resumption or continuance of marital cohabitation so as to imply
forgiveness on the part of the P spouse
 Recrimination is the defense which occurs when the divorce plaintiff is shown to have engaged in
conduct constituting a marital offense
o 750 ILCS 403(c) (c) The previously existing defense of recrimination is abolished. The defense
of condonation is abolished only as to condonations occurring after a proceeding is filed under
this Act and after the court has acquired jurisdiction over the respondent.
 Most states have done away with defenses
 5/403. Pleadings--Commencement--Abolition of Existing Defenses—Procedure
 (c) The previously existing defense of recrimination is abolished. The defense of condonation is
abolished only as to condonations occurring after a proceeding is filed under this Act and after the court
has acquired jurisdiction over the respondent.
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IRMO Hightower (IL, 2005)- Wife condoned adultery so this was not a defense to divorce. Condontaion in the
law of divorce is the forgiveness of an antecedent matrimonial offense on condition that it shall not be repeated
and that the offender shall thereafter treat the forgiving party with conjugal kindness; condonation is a question
of intent and is to be shown by words
IRMO Kenik page 127 handouts: A couple that lives within the same house, but they live in separate
bedrooms, they pay for their own things, then the judge has discretion to decide whether this constitutes living
separate and apart. In this case, the judge held that the couple was living separate and apart for 2 years.
ILCS 5/401 SEC. 401. DISSOLUTION OF MARRIAGE.
(a) The court shall enter a judgment of dissolution of marriage if at the time the action was commenced one
of the spouses was a resident of this State or was stationed in this State while a member of the armed services,
and the residence or military presence had been maintained for 90 days next preceding the commencement of
the action or the making of the finding; provided, however, that a finding of residence of a party in any
judgment entered under this Act from January 1, 1982 through June 30, 1982 shall satisfy the former domicile
requirements of this Act; and if one of the following grounds for dissolution has been proved:
(1) That, without cause or provocation by the petitioner: the respondent was at the time of such marriage,
and continues to be naturally impotent; the respondent had a wife or husband living at the time of the marriage;
the respondent had committed adultery subsequent to the marriage; the respondent has willfully deserted or
absented himself or herself from the petitioner for the space of one year, including any period during which
litigation may have pended between the spouses for dissolution of marriage or legal separation; the respondent
has been guilty of habitual drunkenness for the space of 2 years; the respondent has been guilty of gross and
confirmed habits caused by the excessive use of addictive drugs for the space of 2 years, or has attempted the
life of the other by poison or other means showing malice, or has been guilty of extreme and repeated physical
or mental cruelty, or has been convicted of a felony or other infamous crime; or the respondent has infected the
other with a sexually transmitted disease. "Excessive use of addictive drugs", as used in this Section, refers to
use of an addictive drug by a person when using the drug becomes a controlling or a dominant purpose of his
life; or
(2) That the spouses have lived separate and apart for a continuous period in excess of 2 years and
irreconcilable differences have caused the irretrievable breakdown of the marriage and the court determines that
efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in
the best interests of the family. If the spouses have lived separate and apart for a continuous period of not less
than 6 months next preceding the entry of the judgment dissolving the marriage, as evidenced by testimony or
affidavits of the spouses, the requirement of living separate and apart for a continuous period in excess of 2
years may be waived upon written stipulation of both spouses filed with the court. At any time after the parties
cease to cohabit, the following periods shall be included in the period of separation:
(A) any period of cohabitation during which the parties attempted in good faith to reconcile and
participated in marriage counseling under the guidance of any of the following: a psychiatrist, a clinical
psychologist, a clinical social worker, a marriage and family therapist, a person authorized to provide
counseling in accordance with the prescriptions of any religious denomination, or a person regularly engaged in
providing family or marriage counseling; and
(B) any period of cohabitation under written agreement of the parties to attempt to reconcile.
In computing the period during which the spouses have lived separate and apart for purposes of this Section,
periods during which the spouses were living separate and apart prior to July 1, 1984 are included.
IRMO Burgess- Can guardian of mentally impaired initiate divorce proceedings
Express statutory authority is necessary for a guardian to initiate a dissolution proceeding.
27
Houghton v. Keller- Michigan: The court said unless there is some law prohibiting the guardian from doing so,
the guardian may bring a dissolution of marriage proceeding where one spouse is mentally incapable of doing
so
The death of a spouse after the entry of the dissolution of marriage but before the division of property,
then the proceedings continue
Simplified divorce- very lower economically situated parties
 This is Part IV-A and over-rules The Joint Marriage and Dissolution act should there be any conflicts.
 750 ILCS 5 § 452. Joint Simplified Dissolution Procedure. Petition. The parties to a dissolution
proceeding may file a joint petition for simplified dissolution if they certify that all of the following
conditions exist when the proceeding is commenced:
(a) Neither party is dependent on the other party for support or each party is willing to waive the right to
support; and the parties understand that consultation with attorneys may help them determine eligibility for
spousal support.
b) Either party has met the residency requirement of Section 401 of this Act.
(c) Irreconcilable differences have caused the irretrievable breakdown of the marriage and the parties
have been separated 6 months or more and efforts at reconciliation have failed or future attempts at
reconciliation would be impracticable and not in the best interests of the family.
(d) No children were born of the relationship of the parties or adopted by the parties during the marriage,
and the wife, to her knowledge, is not pregnant by the husband.
(e) The duration of the marriage does not exceed 8 years.
(f) Neither party has any interest in real property.
(g) The parties waive any rights to maintenance.
(h) The total fair market value of all marital property, after deducting all encumbrances, is less than
$10,000, the combined gross annualized income from all sources is less than $35,000, and neither party has a
gross annualized income from all sources in excess of $20,000.
(i) The parties have disclosed to each other all assets and their tax returns for all years of the marriage.
(j) The parties have executed a written agreement dividing all assets in excess of $100 in value and
allocating responsibility for debts and liabilities between the parties.
Residence Requirement- Most states require a period of residence to expire before a divorce action may be
brought or before a decree of divorce may be granted. The period ranges from 6 weeks in Nevada to two years.
The most common time is six months.
ILLINOIS REQUIRES 90 Day RESIDENCY
Fault ground in IL- you also have to allege that without fault on the part of the petitioner, respondent
October 3, 2006
Divisible Divorce
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Marriage Itself
In rem
Support Obligations
(property)
In personam
Child Custody
Specific state statutes
UCCJA- Uniform child
custody jurisdiction act
UCCJEA- Uniform child
custody enforcement act (IL
follows this)
In Rem Jurisdiction:
WILLIAMS CASES page 663
 Williams v State of North Carolina, 317 US 287 (1942) aka Williams I and Williams v State of NC, 325 US
226 (1945) aka Williams II.
 Both cases arose out of the same circumstances where two married residents of NY (Mr. Williams and Mrs.
Hendrix) went to Las Vegas for several months and obtained divorces from their respective spouses. Neither
of the spouses were personally served in Nevada, nor did either spouse enter an appearance in the divorce
actions. The Nevada courts grants both divorces finding that both of the plaintiffs were bona fide residents
of Nevada. As soon as the divorces were granted Mr. Williams and Ms. Hendrix married each other and
returned to North Carolina where they lived together until they were prosecuted for bigamous cohabitation.
 Williams I- the Supreme Court reversed the convictions holding that a state court with jurisdiction base on
the domicile of the P may enter a divorce decree entitled to recognition in other states. Since the Nevada
divorce decree recognized the two as domiciliaries of Nevada the Supreme Court accepted the finding and
concluded that Nevada had jurisdiction to grant the divorce. NC was forced to recognize the divorce under
Article IV, Section 1 of the US Constitution (Full Faith and Credit Clause).
 After the SC decision the case was remanded to NC courts. In this case the state argued that the Ds had
never acquired a bona fide domicile in Nevada and therefore the divorces were invalid. The jury found the
two guilty of bigamous cohabitation. Upon appeal the Supreme Court affirmed the convictions in Williams
II. Although the Nevada's court's finding of Nevada domicile was "entitled to respect and more," the
Supreme Court concluded that NC could reexamine that finding and find that the defendants had never
acquired a bona fide Nevada domicile.
 An ex-parte divorce need not be given full faith and credit unless based on the domicile of one of the
parties.
Kulko v Superior Court of California in and for the City and County of San Francisco
436 US 84 (1978)
 Issue: Whether the CA state courts may exercise in personam jurisdiction over a nonresident,
nondomiciliary parent of minor children domiciled within the state.
 FACTS: Kulko's were married in CA when Husband was on his way to a military tour in Korea. After
the marriage the wife lived in NY and upon finishing his tour the husband was domiciled there. Upon
separation the wife moved to CA. Father had custody during the school year, but eventually both
children decided they wanted to live with their mother and moved to CA. Wife then filed in the CA
Superior Court to establish their Haitian divorce decree as a CA judgment and to modify the judgment to
award the wife sole custody of the children.
 APPEAL: Husband argued that he had no minimum contacts with the state of California
 Holding: The exercise of such jurisdiction would violated the Due Process Clause of the 14th
Amendment.
o Where a nonresident defendant has caused an effect in the State by an act of omission outside the
State, personal jurisdiction over the D in causes arising from that effect may be exercised
whenever reasonable.
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o Dad's motion to quash service was erroneously denied by the CA courts
In Rem and Quasi in Rem Jurisdiction
Presence of defendant's property in the state, of itself without other "contact with the state, was not
sufficient to confer jurisdiction on the state's court to enter a judgment against the owner of the property
If the property is in question then that could confer jurisdiction
Shaffer v Heitner 433 US 186 (1977): The presence of the D's property in the state, or itself and without other
"contacts" with the state, was not sufficient to confer jurisdiction on the state's courts to enter a judgment
against the owner of the property, even a judgment limited to the property.
Burnham v Superior Court. 495 US 604 (1990): Minimum contacts are not required to support personal
jurisdiction over a nonresident who is personally served with process while temporarily in a state, even in a suit
related to his activities in the state. ** Service of process is a constitutionally sufficient basis for assertion of
jurisdiction over a nonresident.
IRMO Pridemore (4th Dist., 1986) Illinois- mere presence in the state is sufficient for jurisdiction. Man
made no claim that he was tricked.
When father, soldier, sent his child to live in Illinois with his parents and a note to take care of his child, he
availed himself to IL jurisdiction. This was the commission of a tort but new legislation states that:
Failure to support a child, spouse or former spouse who has continued to reside in IL since the
person either formerly resided with them in this state of directed them to reside in this state provides for
jurisdiction in 735 ILCS 5/2-209
Home state: where a child has lived for 6 consecutive states before the trial has begun.
IRMO Howard- ILLINOIS 1997- Nonresident former husband's act of sending child to private boarding school
in state was not failure to sup port child or relinquishment of custody and designation of facility administrators
as custodians and therefore, did not, in former wife's action to register divorce decree, subject former husband to
jurisdiction under long arm statute permitting exercise of personal jurisdiction as to cause of action arising out
of failure to support child; child returned to his home with former husband in another state during school
vacations, and former husband visited child at school
Uniform Parentage Act (1973): Provides that a person who has sexual intercourse in the state thereby submits
to the jurisdiction of its courts with respect to an action concerning a child who may have been conceived by
that act.
Uniform Interstate Family Support Act (1999): Provides 8 different grounds for jurisdiction over nonresident individuals in proceedings to establish, enforce, or modify support orders or to determine parentage.
Some factors include: that the individual resided with the child in the state, that the individual resided in the
state and provided prenatal expenses or support for the child, and that the child resides in the state as a result of
the acts or directives of the individual.
FULL FAITH AND CREDIT CLAUSE
Estin v Estin, 334 US 541 (1948)
 Facts: Parties married in 1937and lived in NY for 5 years until the husband left the wife in 1942. 1943 the
wife brought an action against him for separation, and he entered a general appearance. The court found that
the husband abandoned her and granted her a decree of separation and $180/ month of permanent alimony.
January 1944 Husband went to Nevada where in 1945 he instituted an action for divorce. Wife was notified
of action by constructive service, but entered no appearance. May 1945 Nevada court found that husband
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


was a bona fide resident of Nevada since Jan. 30, 1944, and granted him an absolute divorce on ground of 3
years continual separation without cohabitation, but there were no provisions for alimony (Nevada court
was aware of the NY alimony decree).
After Nevada judgment was entered the husband stopped paying alimony. Wife then sued in NY for a
supplementary judgment for the arrears. Husband appeared in court and moved to eliminate alimony
provisions of the separation decree. His motion was denied, this was affirmed by the appellate division and
court of Appeals (aka NY SC)
Issue: Whether a NY decree awarding respondent $180/month for her maintenance and support in a
separation proceeding survived a Nevada divorce decree which subsequently was granted petitioner
HOLDING: Nevada had no rights to alter wife's rights in the NY judgment. Nevada could no adjudicate the
rights of the wife under the NY judgment when the wife was not personally served, nor did she appear in the
hearing.
 Nevada decree has effect in NY insofar as it effects the marital status of the couple, but it is ineffective
on the issue of alimony
Vanderbilt v. Vanderbilt, 354 US 416, (1957)
 FACTS: Cornelius and Patricia were married in 1948 and separated in 1952 while living in CA. Wife
moved to NY in 1953, and husband filed suit for divorce in Nevada. Nevada proceeding resulted in decree
of final divorce in June 1953 which provided that both husband and wife were "freed and released from the
bonds of matrimony and all the duties and obligations thereof." The wife was not served with process in
Nevada and did not appear before the divorce court.
 1954 Wife instituted action in NY court for separation and alimony from husband. NY court did not have
jurisdiction over him, but to satisfy obligations to wife, it sequestered his property within the state. Husband
appeared specially and contended that the Full Faith and Credit Clause compelled the NY court to treat the
Nevada divorce as having ended the marriage and as having destroyed any duty of support which he owed
the wife. NY court found the Nevada divorce decree valid and held that it effectively dissolved the
marriage, it nonetheless entered an order directing the husband to may support payments( under the NY
Civil Practice Act).
 PH: NY Court of appeals upheld the support order. Husband appealed contending that the NY civil practice
act as applied is unconstitutional because it contravenes the Full Faith and Credit Clause.
 HOLDING: The Nevada decree, to the extent it purported to affect the wife's right to support, was void and
the Full Faith and Credit Clause dfid not obligate NY to give it recognition.
o The wife was not subject to Nevada's jurisdiction. A court cannot adjudicate a personal claim or
obligation unless it has jurisdiction over the person of the defendant.
735 ILCS 5 § 2-206. Service by publication; affidavit; mailing; certificate.
(a) Whenever, in any action affecting property or status within the jurisdiction of the court, including an
action to obtain the specific performance, reformation, or rescission of a contract for the conveyance of land,
plaintiff or his or her attorney shall file, at the office of the clerk of the court in which the action is pending, an
affidavit showing that the defendant resides or has gone out of this State, or on due inquiry cannot be found, or
is concealed within this State, so that process cannot be served upon him or her, and stating the place of
residence of the defendant, if known, or that upon diligent inquiry his or her place of residence cannot be
ascertained, the clerk shall cause publication to be made in some newspaper published in the county in which
the action is pending. If there is no newspaper published in that county, then the publication shall be in a
newspaper published in an adjoining county in this State, having a circulation in the county in which action is
pending. The publication shall contain notice of the pendency of the action, the title of the court, the title of the
case, showing the names of the first named plaintiff and the first named defendant, the number of the case, the
names of the parties to be served by publication, and the date on or after which default may be entered against
such party. The clerk shall also, within 10 days of the first publication of the notice, send a copy thereof by
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mail, addressed to each defendant whose place of residence is stated in such affidavit. The certificate of the
clerk that he or she has sent the copy in pursuance of this Section is evidence that he or she has done so.
(b) In any action brought by a unit of local government to cause the demolition, repair, or enclosure of a
dangerous and unsafe or uncompleted or abandoned building, notice by publication under this Section may be
commenced during the time during which attempts are made to locate the defendant for personal service. In that
case, the unit of local government shall file with the clerk an affidavit stating that the action meets the
requirements of this subsection and that all required attempts are being made to locate the defendant. Upon the
filing of the affidavit, the clerk shall cause publication to be made under this Section. Upon completing the
attempts to locate the defendant required by this Section, the municipality shall file with the clerk an affidavit
meeting the requirements of subsection (a). Service under this subsection shall not be deemed to have been
made until the affidavit is filed and service by publication in the manner prescribed in subsection (a) is
completed.
No jury trials in family law in ILLINOIS
States violated due process when they required people to pay a filing fee for divorce proceedings
No right to have an attorney during divorce proceedings
Illinois LONG ARM statutes- provides that in actions for divorce or legal separation a person submits to the
courts' jurisdiction either by maintaining a matrimonial domicile in the state, or by committing any act giving
rise to the cause of action.
Lowenschuss v. Lowenschuss, Superior Court of PA, 1990, 396 Pa.Super. 531
 Husband is estopped from asserting the invalidity of his wife's Alabama divorce decree
 FACTS: Ceremonial marriage in 1965. The husband was an experienced attorney who knew that the wife
obtained an Alabama divorce from her previous spouse even though she never lived in Alabama. This
divorce was obtained with consent from the first husband. However, wife never lived in Alabama and
misrepresented that she was a bona fide resident of Alabama. Couple lived together for 9-17 years and
cohabitated as husband and wife and had 4 kids. Husband contend that in 1974 he became fully aware of the
invalidity of wife's Alabama divorce. 1981 wife filed for divorce. Husband defended the action on the
ground that no valid marriage between the parties existed because of the invalidity of the wife's prior
divorce.
 ELEMENTS OF ESTOPPEL: (1) misleading words, conduct, or silence by the party against who the
estoppel is asserted; (2) unambiguous proof of reasonable reliance on the misrepresentation by the party
seeking to assert the estoppel; (3) no duty of inquiry on the party seeking to assert the estoppel
 In this case its not whether the wife was misleading, its about the validity of the divorce.
 A person may be precluded from attacking the validity of a foreign divorce decree if, under the
circumstances, it would be inequitable for him to do so (R.2d. Conflict of Laws Section 74).
 There can be no equitable estoppel against the D, because thee P herself was fully appraised of the situation
which she herself had created.
 This form os estoppel is unlike equitable estoppel in that it does not focus solely on whether one party has
made a misrepresentation on which the other has reasonably relied. The focus is broader and requires a
consideration of all of the circumstances surrounding not only the procurement of the divorce but also the
conduct of the parties thereafter and the effect of a declaration of he invalidity of the divorce on other.
 The circumstance which most obviously calls for application of the estoppel theory is that the divorce
was obtained by the very party attempting to attack it.
Cassens v Cassens US Dist Ct IL. (2006)- Action in the state court against her husband and his daughter
seeking a judicial declaration that prenuptial agreement was void
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1. Daughter's involuntary removal of husband to Montana did not change husband's domicile for
diversity purposes
2. Husband's residence in Montana was not sufficient to establish that he was domiciled there for
diversity purposes
3. Even if husband were domiciles in Montana, wife claims against husband fell within domestic
relations exception to diversity jurisdiction
Equitable Distribution does not mean equal, but there are some states that do require some attempt to equally
divide the marital property. There are 14 states authorized by statute to divide not only the marital property, but
to divide all property held by the spouses at the time they get divorced.
In IL at the time of a divorce, when property is marital in nature both parties will claim it whether they bought it
or not (doesn't matter who's money was used to buy the good)
All property acquired after the marriage but before the divorce decree is marital property
deCastro v deCastro, Supreme Judicial Court of MA, 1993, 415 Mass. 787
 Upon marriage both the husband and wife were working. Once the wife became pregnant she stopped
working. The husband created a company with monies saved in a joint account by the couple. The
couple bought a house and had 2 more children. They became very wealthy, with 8 cars, plane, boat, etc.
The husband cheated on the wife and left the home. The wife sustained the home and the children, and
began working again to make ends meet. However, the man continued to pay household expenses. The
husband bought land and built a vacation home for his wife and the children. Husband owns a
significant number of shares in Data General.
 The trial judge considered the wife's contribution as 90% of raising the kids, presents, entertaining both
her family and the husband's family, maintaining the house and cars, etc.
 APPEAL:
 (1) The husband challenged the division of the Data General Stock. He claims that the judge failed to
consider all of the factors and also to make appropriate findings. The husband argues that the judge did
not make the rationale for his decision regarding the division of assets implicit or explicit.
o Judges have discretion to make fair and just assignments of property. Any conclusions the judge
makes will be reversed only if plainly wrong and excessive. The findings the judge made support
the conclusion that he considered all of the factors required. The judge was not compelled to
consider the husband's contributions to the computer industry in distributing the marital property.
The judge's findings with regard to contribution to the marital state were more than adequate
 (2) Husband argues that the rationale does not follow logically from the findings of fact or the
underlying evidence heard at trial, and the judge did not apply existing case law properly to the facts of
the case. Husband says the division of his stock was wrong, excessive, and an abuse of discretion.
o Both financial and non-financial contributions must be taken into account.
o Section 34 does not require the judge to limit his order to consideration of which party made the
greater financial contribution to the acquisition of the assets. The marriage as partnership concept
recognizes that one party often concentrates on the financial side of the family while the other
concentrates on homemaking and child care. Both parties contributes to developing a substantial
marital estate.
 HOLDING: Case is affirmed regarding the judge's division of the Fata General Stock and is remanded
to the Probate Court for a determination of damages, based on the difference between the value of the
stock on the date the stay issued and the value on the date of this opinion.
Marital Fault- Many state statutes provide explicitly that courts may not consider marital misconduct in
determining the amount of property awarded to either spouse.
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ILLINOIS- does not look at marital misconduct in evaluating the division of property
Sparks v. Sparks (Mich, 1992)- The wife was awarded only 1/4 of the marital property after a 26 year marriage
based upon the trial court's finding that her sexual infidelity caused he breakdown of the marriage. On appeal
the court concluded that fault was a relevant factor, but that the trial court had given it disproportionate weight.
Many states have taken economic fault into account aka: dissipation of assets
Dissipation of Assets- With or without explicit statutory authority, courts have taken into account, in dividing
marital property, the conduct of a spouse that dissipates or conceals marital assets.
Dissipation is the disposition of marital property by a spouse in a manner designed to circumvent
equitable distribution.
IRMO O'Neill (IL, 1990)- Expenditure of $15,000 in unsuccessful defense of attempted rape charge against
husband, on which husband was arrested almost 4 years prior to dissolution, was not dissipation of marital
property that could be considered in distributing marital assets upon dissolution. Former wife did not claim that
expenditure occurred at a time marriage was undergoing irreconcilable differences/
IRMO Rodriguez (KS, 1998)- Husband who dissipated marital assets as a result of illegal drug activities, was
not entitle to marital home in divorce proceedings, or a portion of the increase in value of the home.
IRMO Hazel (Ill.App. 1991)- In determining whether marriage was undergoing irreconcilable breakdown, and
therefore whether dissipation of assets can be considered when distributing material property, irreconcilable
breakdown may not be viewed as prolonged gradual process extending from initial signs of trouble in marriage
until actual breakdown itself.
Even though the wife listed incidents and conflicts which in retrospect might appear to mark the
beginnings of gradual process culminating in marital breakdown, wife never previously filed for dissolution.
IRMO Cecil (Ill. App. 1990)- Wife sees that the marriage is breaking up so she gets rid of her non-marital
property by giving it to relatives. The court held that this was dissipation of non-marital funds because it ad
done in bad faith
October 9, 2006
750/5-503 (d) Distribution of property: In a proceeding for dissolution of marriage or declaration of invalidity
of marriage, or in a proceeding for disposition of property following dissolution of marriage by a court which
lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court
shall assign each spouse's non-marital property to that spouse. It also shall divide the marital property without
regard to marital misconduct in just proportions considering all relevant factors, including:
(1) the contribution of each party to the acquisition, preservation, or increase or decrease in value of the
marital or non-marital property, including the contribution of a spouse as a homemaker or to the family unit;
(2) the dissipation by each party of the marital or non-marital property;
(3) the value of the property assigned to each spouse;
(4) the duration of the marriage;
(5) the relevant economic circumstances of each spouse when the division of property is to become
effective, including the desirability of awarding the family home, or the right to live therein for reasonable
periods, to the spouse having custody of the children;
(6) any obligations and rights arising from a prior marriage of either party;
(7) any antenuptial agreement of the parties;
(8) the age, health, station, occupation, amount and sources of income, vocational skills, employability,
estate, liabilities, and needs of each of the parties;
(9) the custodial provisions for any children;
34
(10) whether the apportionment is in lieu of or in addition to maintenance;
(11) the reasonable opportunity of each spouse for future acquisition of capital assets and income; and
(12) the tax consequences of the property division upon the respective economic circumstances of the
parties.
**
Ward v Ludwig- (Oh.Ct.App, 2002)- Haig convention on service requires that the papers being served must be
in the native language of the person being served and the papers must be submitted through the government,
STOCK OPTIONS/ TIME OF ACQUISITION
Unvested stock options(pg 715)
 An employee stock option is an employee's contractual right to purchase and employer's stock during a
specified period at a predetermined price. An employee stoc option may be vested and matures, vested
and unmatured, or unvested. If the employee has an absolute right to exercise the option immediately,
the option is vested and matured. If the employee cannot exercise the otopn until some future date, but
the employee has an absolute right to exercise the option on that date, the option is vested and
unmatured. If the option cannot be exercised until some future date and the option is subject to
divestment, the option is unvested.
IRMO Short, Supreme Court of Washington, En Banc, 1995, 125 Wash.2d 865
 Stock options of a husband are part community property and part personal property because some vested
during the marriage and others were vested after the separation
 Washington is a state where at the time the marriage is disfunked, anything you get after that is separate
property, not community property
 Stock options are characterized when they are granted
 This court says that anything that is vested (that you could exercise the option of) is community
property.
 Court says you look at the stock option plan and why they are granting the option: is it for past services
(if so then if the past act occurred during the marriage then its marital property), whether its an incentive
to join a company (that is granted for the present behavior so its marital property), if the option is
granted to retain people for the future i.e. you only get the option so long as you work at the company
(this is granted for the future and outside of the marriage).
 TIME RULE: is nothing more than a fraction whose numerator is the period of time
Time on job until the divorce or separation
X
options = marital portion
Time the person must be on job to exercise options
(Taken from the Hug case in the handout on page 156)
Time from granting of option to divorce
X option = marital property
Time from grant of option until they are able to be exercise
(Taken from IRMO Powell case in handouts on page 155)
**Once you get the marital portion, that amount must be divided up equally
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Powell v Powell (Ore. App. 1997)
Fisher v Fisher (Penn, 2001)- This case never mentioned the time rule, but they said whether the options are
vested or non-vested makes to difference. If you were granted them during the time of marriage they are marital
property
IRMO Balanson (Colo. 2001) page 159- Employee stock options granted in consideration of future services, or
services which are not yet completed are NOT marital property
In Re Valence (NH, 2002)- trial court was required to determine, before dividing husband's unvested stocl
option in marriage dissolution proceeding, the portion of thee stock options attributable to services rendered by
the husband during the marriage, The trial court was to consider the stock option plan, as well as whether the
options were intended to secure optimal tax treatment, induce husband to accept employment, induce husband
to remain with employer, to induce husband to leave his employment, reward husband for completing a specific
project or attaining a particular goal, and whether the options were granted on a regular or irregular basis
750 ILCS 5/503(b)(3)( For purposes of distribution of property under this Section, all stock options granted to
either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of
marriage, whether vested or non-vested or whether their value is ascertainable, are presumed to be marital
property. This presumption of marital property is overcome by a showing that the stock options were acquired
by a method listed in subsection (a) of this Section. The court shall allocate stock options between the parties at
the time of the judgment of dissolution of marriage or declaration of invalidity of marriage recognizing that the
value of the stock options may not be then determinable and that the actual division of the options may not
occur until a future date. In making the allocation between the parties, the court shall consider, in addition to the
factors set forth in subsection (d) of this Section, the following:
(i) All circumstances underlying the grant of the stock option including but not limited to whether the
grant was for past, present, or future efforts, or any combination thereof.
(ii) The length of time from the grant of the option to the time the option is exercisable.
** In Illinois at the time of the divorce the decision must be made as to who gets what percentage of the stocls
Valuation date (pg 716)- As of what date should property be valued for purposes of equitable distribution?
States apply different rules on this point.
5/503(f) In a proceeding for dissolution of marriage or declaration of invalidity of marriage or in a proceeding
for disposition of property following dissolution of marriage by a court that lacked personal jurisdiction over the
absent spouse or lacked jurisdiction to dispose of the property, the court, in determining the value of the marital
and non-marital property for purposes of dividing the property, shall value the property as of the date of trial or
some other date as close to the date of trial as is practicable.
5/503(h) Unless specifically directed by a reviewing court, or upon good cause shown, the court shall not on
remand consider any increase or decrease in the value of any "marital" or "non-marital" property occurring
since the assessment of such property at the original trial or hearing, but shall use only that assessment made at
the original trial or hearing.
Dates of Marriage- In addition to dividing marital property between the spouses, courts in a divorce case may
allocate responsibility for payment of the parties' debts. Debts may be classified as marital or separate.
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IRMO Morris- Man and wife separate for many years. No divorce. Husband wins lottery. Wife files for divorce
and argues that the lottery winning are marital property. Court holds that it is marital property but there must be
fair and equitable division of property.
Middendorf v. Middendorf
 Court held that the appreciation in value of the property was a marital asset although the property itself
was not marital property.
 This does NOT APPLY IN ILLINOIS
IRMO Jacks (Ill. App. 1990) Page 717.Purchases in contemplation of marital assets become marital assets.
You have to look at the circumstances surrounding the purchase of the home prior to marriage, It was purchased
in contemplation of marriage in this case
Where man inherits home, and husband then has to take out a mortgage on the home and pays the mortgage
with marital funds, then the court might say
Transmutation and Commingling page 722
 Transmutation: Property is transferred between the spouses during the marriage in circumstances
indicating an intention to change its beneficial ownership may be transmuted from separate to marital
property. Example: When property is purchased from separate funds and title to it is taken in joint
tenancy or tenancy by the entities
 Transmutation raises a rebuttable presumption that a gift to the marital estate was intended, and the
property becomes marital unless the presumption is rebutted by evidence that this was not the intent of
the owner of the separate estate
 Transmutation turns on the expression of an intent to change the characterization of the property
 Commingling results when separate and marital properties are inextricably mingled, so that the
respective contributions of the two estates cannot be traced into the product
 Mingling results in the combination's being characterized as marital property
 Rule 503(c)
(c) Commingled marital and non-marital property shall be treated in the following manner, unless otherwise
agreed by the spouses:
(1) When marital and non-marital property are commingled by contributing one estate of property into
another resulting in a loss of identity of the contributed property, the classification of the contributed property is
transmuted to the estate receiving the contribution, subject to the provisions of paragraph (2) of this subsection;
provided that if marital and non-marital property are commingled into newly acquired property resulting in a
loss of identity of the contributing estates, the commingled property shall be deemed transmuted to marital
property, subject to the provisions of paragraph (2) of this subsection.
(2) When one estate of property makes a contribution to another estate of property, or when a spouse
contributes personal effort to non-marital property, the contributing estate shall be reimbursed from the estate
receiving the contribution notwithstanding any transmutation; provided, that no such reimbursement shall be
made with respect to a contribution which is not retraceable by clear and convincing evidence, or was a gift, or,
in the case of a contribution of personal effort of a spouse to non-marital property, unless the effort is significant
and results in substantial appreciation of the non- marital property. Personal effort of a spouse shall be deemed a
contribution by the marital estate. The court may provide for reimbursement out of the marital property to be
divided or by imposing a lien against the non-marital property which received the contribution.
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If you have a nonmarital investment fund which is used immediately and you deposit marital money into that
investment fund, then that fund is used to purchase new stocks and funds. Those funds are commingled with
marital money. This is acquiring a new identity (not marital or non marital) its just stocks and bonds which are
then marital property
IRMO Davis (Ill. App. 1991):
 Once marital and nonmarital funds are commingled and lose their identity through acquisition of a
newly created asset during marriage, the asset is marital
 Husband's cash management account with stock brokerage, which was initially established with
inherited cash, stocks, and bonds. Was properly classified as marital property, where husband deposited
marital funds into account, and marital and nonmarital funds were commingled to create new assets,
resulted in transmutation to marital property
IRMO Davis (Ill.App. 1996) READ in handout
 Assets were commingled
IRMO Hagshenas (Ill.App. 1992)
 Wife's contribution of initial funds to purchase business was gift to marital estate
 Amount of husband's checks to gambling casinos was properly classified as dissipation
 Appreciation in investment account should have been equitably apportioned between marital and
nonmarital funds
 Motive was taken into account
IRMO Weiler (Ill. App. 1994)
 Assets are to be valued at time of dissolution of marriage
 Pension rights, whether matured, vested, contributory or noncontributory are property under Illinois
Marriage and Dissolution of Marriage Act
 Interspousal gifts are possible under Illinois Marriage and Dissolution of Marriage Act, but gift must be
proven by clear, convincing and unmistakable evidence to overcome presumption that all property
acquired subsequent to marriage is marital Section 503(a)(1)
 Amount of $4,000 that husband deposited into wife's individual retirement account was a "gift"
and therefore nonmarital property for purposes of dissolution action. The fact that the husband
gave gift for tax purposes did not matter.
IRMO Perlmutter (Ill. App. 1992)
 Husband's interest in partnership should have been classified as nonmarital property, husband's interest
in business purchased prior to marriage did not qualify as marital assets acquired by partnership after
parties' marriage constituted marital property
If you can trace property to non marital funds then it can be non marital property
IRMO Siddens (Ill. App. 1992)- Wife was entitled to interest in farm, deed to which husband added her name as
joint tenant, wife's request for $5,400/ month in permanent maintenance was properly denied, and wife was not
entitled to reimbursement for travel time incurred by one of her attorneys who lived across state
Where some items of husband's separate property were exchanged for other property during course of
marriage, but. Those new acquisitions were also separately maintained and separately titled, they were
husband's separate property, as there was no evidence of intent to transmute.
Husband's separately owned rental business did not become marital property simply because new
properties were added and older ones were maintained; a;; funds cam from husband's separate accounts.
Mere marital use of income from husband's separately owned rental property did not transmute
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properties themselves into marital property
Transmutation occurs only where contribution of material assets to nonmarital property is significant.
Mere maintenance of asset during marriage, standing alone, does not constitute significant contribution
requiring reimbursement to marital estate
IRMO Kelm, Supreme Court of Colorado, En Banc, 1996, 912 P.2d 545
 FACTS: Both had pension plans that had not yet matured
 PROCEDURAL HISTORY: Trial court applied the time rule law he worked for 19 or the 30 years, so
the court divided 19/30 and figured out 19/30ths of the pension amount and then divided that in half
 ISSUE: Whether the trial court erred in awarding wide (1) a portion of husband's retirement benefits
attributable to his employment after divorce (2) all benefits from her pension plan; and (3) a lump sum
distribution of contributions o the husband's pension plan should he die prior to retirement
 HOLDING: It was appropriate to use the time rule formula, but you can't use 30 as the denominator
because you don't know if the husband will take early retirement, if he will work beyond 30 years, and
because this is unknown they can't really make a determination yet.
 Defined benefit plan: funded solely by the employer (Example: military pension plans- money comes
directly from the employer (gov't in this case) and money isn't taken from the soldier's pay check
 Defined contribution plan: both employer and employee make contributions into the retirement fund
Immediate offset- distribute immediately- value of pension (what is contributed during marriage) based on
what it would be at time of retirement—and offset the marital estate now (this won't work if there are not
enough other assets to balance this.
Deferred distribution- number of years married/ number of years employed at job total
DEFERRED DISTRIBUTION IS UNIVERSALLY ACCEPTED FORMULA
1990 start job, 1995 gets married, 2000 gets divorce, 2005 receives pension
5/15
x Pension = marital portion of the money
ERISE Requirements Employee Retirement Income Security Act regulates most employee benefit plans in the
US with the exception of military pensions, federal employees' pensions and pension plans set up by state and
local governments. The original ERISA forbid assignment of benefits, but was amended in 1984 to allow
possible deferred distribution of such pensions. The new law provided that a "domestic relations order" made by
a state divorce court, including orders for alimony, child support or marital property, could be converted into a
qualified domestic relations order.
McCarty v McCarty- held that military retirement was not marital property. This was overturned by
congressional action which passed a statute providing for military pensions
IRMO Hunt (Ill. App. 1979)- Husband's pension and profit sharing interests were bargained for contractual
rights to deferred compensation and, whether vested or nonvested, should have been included among the marital
property divided between husband and wife
Employee's interest in a pension of profit sharing plan is vested if it is not forfeited by discharge or
voluntary retirement of employee prior to retirement age
***In Marriage dissolution proceeding, employee spouse's contractual right to a pension of profit
sharing interest is "property" under Marriage and Dissolution of Marriage Act, regardless of whether the interest
is matured, vested or nonvested, or contributory or noncontributory; therefore any part of such pension or profit
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sharing interest earned by employee spouse while married that is "acquired" is a marital property to be divided
between spouses upon divorce
*** In marriage dissolution proceeding, if it is difficult to place present value on pension or profit
sharing interest to be included as marital property to be divided between spouses due to uncertainties regarding
vesting or maturation. Or if present value can be ascertained but type, or lack of other marital property makes it
impractical or impossible to award sufficient offsetting marital property to nonemployee spouse, then trial court
in its discretion may award each spouse an appropriate percentage or percentage to be paid "if, as and when"
pension becomes payable; trial court will retain jurisdiction and award nonemployee spouse some percentage of
the marital interest in each payment,
IRMO Blackston (Ill. App. 1994)- (1) Although it might be proper consideration that dollars made in early years
of husband's employment history had more years to grow through accumulation of interest on investment so as
to be entitled to greater weight that dollars made in later years, without evidence in record supporting contention
in detail, such contention did not provide sufficient basis to impose burden upon increases in pension benefits
that were earned by husband after dissolution of marriage (2) granting wife benefits from husband's pension
based upon increases in pension after dissolution of marriage was improper and (3) although wife was entitled
to former-spouse-survivor annuity, awarding 88.1% of annuity to wife was abuse of discretion
IRMO Wisniewski (Ill. App. 1997)- Proportionality rule for determining marital interest in pension plan need
not compare years in marriage with years outside marriage; rule may also compare amount of contributions
during marriage with a mount of contributions outside marriage, or compare other factors
Although trial court in dissolution action was empowered to reserve jurisdiction to cash out respective
shares of pensioner spouse's pension plan until time of his retirement, it should not have delayed choice of
formula of apportionment to be applied at a later time
Because the divorce decree didn’t have a formula for there were problems because this made the
decision unappealable
PERSONAL INJURY- Personal injury damages, under the majority rule referred to as the analytic approach,
the portion of such an award that reimburses expenses incurred or earnings lost during the marriage is subject to
equitable distribution. ILLINOIS
The statutory presumption that property received during the marriage is marital to require that the entire
amount of any claim accrued or award received during the marriage must be treated as marital property
IRMO Burt (Ill. App 1986)- Trial court's division of property, including proceeds o settlement of husband's
personal injury cause of action, was reasonable where court noted that husband's medical bills had been paid, an
annuity to provide for his old age had been obtained, and he was freed of large marital debts and noted that
there was not enough money to enable the husband's family to be properly cared for and at the same time to
attempt to make him whole for his pain and suffering by a substantial monetary award.
IRMO Waggoner (Ill. App. 1994): ANALYTICAL APPROACH- changes from looking directly at the statute
and going to the analytical approach
IRMO DeRossett (Ill. 1996): the IL SC rejected the analytical approach and said you must use the
MECHANICAL APPROACH
The statutory presumption that property received during the marriage is marital to require that the entire
amount of any claim accrued or award received during the marriage must be treated as marital property
It is a marital asset but how you divide it up is a totally different issue and looked to Burt. One of the
factors to look at while dividing up money is PAIN AND SUFFERING which the court now considers in
dividing property. Because of this it was a 70/30 divide in this case.
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Social Security payments are not marital assets according to federal law and therefore cannot be divided up.
Numerous courts have held that social security benefits are not marital property and are not divisible on divorce
Courts may take the benefits into account as part of their consideration of the parties; economic
circumstances. However, the court cannot do a 100% offset of benefits for either party because this is violation.
(NOT IN ILLINOIS)
Provisions in a separation agreement that the spouses would pool and divide their Social Security
retirement benefits were held to be invalid and unenforceable in Illinois.
IRMO Crook (Ill. 2004)- As a matter of first impression the court could not consider husband's federal Social
Security benefits in determining the division of assets. The marital estate was not entitled to reimbursement of
$40,000 contributed to the nonmarital estate through the payment on a joint loan used to build a shed on the
wife's nonmarital property. ILLINOIS- YOU CANNOT TAKE SOCIAL SECURITY PAYMENTS INTO
CONSIDERATION this is the minority view
IRMO Rogers (Ill. App. 2004): Social security benefits may not be divided directly or used as a basis for an
offset during state dissolution proceedings. A court dividing assets in a marital dissolution proceeding should
simply not give any consideration to social security benefits because those benefits have already been divided
by Congress.
Lanier v. Lanier (GA 2005)- Husband's expectation of retirement benefits could be considered future income
for alimony purposes, but they cannot be divided under court proceedings because the benefits are not marital
property. They benefits cannot be directly assigned to the spouse, but the court can indirectly assign money for
alimony.
If you have a pension instead of social security then the pension can be divided (scary?)
Congress has now attempted to deal with the immigration problem by enacting a statute hat establishes a twoyear conditional status for persons entering the country as spouses of United States citizens, and provides for
removal if the marriage was entered into for fraudulent purposes or was terminated or annulled during that time
CLOSELY HELD CORPORATION
Bowen v. Bowen:
 FACTS: Married in 1955, 4 kids. During early marriage P put D through engineering school after which
he formed a corporation of which he owns 22% of the shares. Sepertaed in 1979, P continued to live in
family home. Major assets = home and the 22% interest in Company (Polycel).
 PH: Lower court directed that marital assets be equally divided; family home to be sold ASAP and after
payment of expenses of sale, previous incurred college debts and the debts the net profits were to be
divided equally. Court valued the stock between $70k and $338k. Court directed that the D retain all of
the stocks and that the P be awarded an equitable one half interest in said stock. D retained all indicia of
ownership but he was to share with the P all dividends and proceeds from the sale or transfer of any
stock. The court fixed the current amount of these items at $48,000/yr as base compensation to the D
and that all future income in excess thereof was to be deemed stock dividends to be divided between the
parties.
 ISSUE: Whether a court, in effecting distribution of the assets, and faced with, difficulty in fixing value,
should permit the stockholder husband to retain ownership of all of the stock and award the wife an
equitable one-half interest in the stock
 HOLDING: Appellate court's decision is reversed and remanded to the trial court. (1) Courts must
arrive at a value for closely held corporate stock to effect equitable distribution of the asset to one
spouse; (2) a comprehensive buy-sell agreement will provide presumptive evidence of such value; (3)
Opinions of value not based upon evidence in the resocrd or of proven acceptance in the field
should be given little weight; and (4) courts should employ independent experts under Rule 5;3-3
when necessary to resolves specific disagreements between the parties' experts
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o A court faced with what it considers inadequate proofs of value must nonetheless eliminate
the sources of continuing disquiet between the parties. It must therefore resolve the
question of value in the divorce proceedings. The disadvantages of the continuing
relationship between the parties outweighs the problems of proof that confront a court in
such a situation.
o A court should not base an opinion on theories of value that lack support in the record,
demonstrated market reliability, or general acceptance.
o IRS formula requires the following factors as fundamental and requiring careful analysis:
history of the firm, the nature of the company, the outlook for the industry, the book value of the
stock, the size of the bloack to be valued, the earning and dividend paying capacities of the
company and the existence of goodwill or other intangible assets.
Notes:
The elimination of the source of strife and friction is to be sought by the judge in devising the scheme of
distribution and the financial affairs of the parties should be separated as far as possible.
Revenue Ruling 59-60
GOODWILL. A business's reputation, patronage, and other intangible assets that are considered when
appraising the business, esp. for purchase; the ability to earn income in excess of the income that would be
expected from the business viewed as a mere collection of assets. • Because an established business's trademark
or servicemark is a symbol of goodwill, trademark infringement is a form of theft of goodwill. By the same
token, when a trademark is assigned, the goodwill that it carries is also assigned.
Yoon v. Yoon, Supreme Court of Indiana, 1999, 711 N.E.2d 1265
 Sunsook Nam (wife) and Jay (husband) divorces on August 15, 1996. Trial court awarded custody of
two minor children to Nam and ordered Yoon to pay Child support. Court divided the property of the
marriage, including Yoon's medical practice: 55.4% to Nam and 44.6% to Yoon. The trial court valued
the practice at roughly $2.5 million (supported by expert opinion).
 PH: Yoon appealed whether the trial court's division of property erroneously counted his future earning
capacity both as goodwill in the value of his medical practice and again to justify unequal division of the
marital property. Court of Appeals reversed and remanded on an issue of child support but affirmed the
trial court on all other grounds.
 HOLDING: Goodwill that is attributable to the business enterprise is divisible property, but to the extent
that the goodwill is personal to the professional or business owner, it is a surrogate for the owner's future
earning capacity and is not divisible
o REVERSED AND REMANDED: because the trial court's property division included a value
attributable to Yoon's future earning capacity. On remand the court must determine the value of
Yoon's practice attributable to the practice as a business without Yoon.
o Goodwill that depends on the continued presence of a particular individual is a personal asset,
and any value that attached to a business as a result of this personal goodwill represents nothing
more than the future earning capacity of the individual and is not divisible
o Indiana law: The relative earning power of the parties is not a divisible asset because it is not
property, but may be considered in determining the percentage of property to be given to each.
 Goodwill has been described as the value of a business or practice that exceeds the combined value of
the net assets used in the business
 Goodwill in a professional practice may be attributable to the business enterprise itself or to the
individual owner's personal skill, training, or reputation.
 Enterprise Goodwill: an asset of the business and is property that is divisible in a dissolution to the
extent that it inheres in the business, independent of any single individual's personal efforts and will
outlast any person's involvement in the business
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
Personal goodwill- when everything is tied to an individual; basically the potential earnings of a person.
For instance when a doctor's office depends on one doctor- the practice relies on the one doctor 100%
ILLINOIS: excludes goodwill based on the personal attributes of the individual from the marital estate
IRMO Zells (Ill. 1991): Goodwill in professional practice is not marital property but is an aspect of income
potential to be considered in maintenance and support
Professional goodwill of husband's law practice did not justify offsetting award of real estate to wife
against professional goodwill assigned to husband
Professional goodwill as aspect of income potential is reflected in maintenance and support awards in
dissolution proceedings but is not a divisible marital asset.
IRMO Tatly (Ill. 1995)- Upon divorce the court awarded wife a limp sum of $750,000 and the condo where she
was living. The court assigned the couple's remaining assets to the husband.
Schneider (Ill. 2005)- Personal goodwill was improperly included in the valuation of former husband's dental
practice, even though spousal maintenance was not awarded to former wife; goodwill was considered by the
circuit court in assessing the statutory criteria for dividing material property and in deciding to award the former
wife a disproportionate share of the marital assets, and any further consideration of that goodwill in valuing the
dental practice would amount to an impermissible double counting.
Reversed by the supreme court for misinterpreting Zells but they didn't examine the difference between
personal and enterprise goodwill
ILLINOIS DISTINGUISHES BETWEEN ENTERPRISE GOODWILL AN PERSONAL GOODWILL
See Schneider: You essentially have to prohibit the evaluation of goodwill into a professional practice.
EDUCATIONAL DEGREE
IRMO Olar, Supreme Court of Colorado, En Banc, 1987 (747 P.2d 676)
 Sally and Husband Terry were married for 12 years. Upon separation the wife didn't know she was
pregnant with the couples' only child. Child was 11 months upon dissolution and the wife was an
unemployed full time student living with her parents in IN. The husband was living in Texas making
$35k/year. During the entirety of the marriage minus one year the husband was a full time student. The
wife worked full time . Husband's educational costs were financed by veteran's benefits, tuition waivers,
student loans, fellowships, and graduate student stipends. Husband also got $8k inheritance. Marital
property: 2 vehicles, furniture, mobile home, savings account $1100, Both had student debts, and the
husband had $5400 student loan.
 ISSUE: Whether an educational degree constitutes marital property subject to division upon dissolution
of marriage; or in the alternative, if an educational degree is not marital property: Whether the wife was
entitled to maintenance under the facts f this case, including the contributions made by the wife towards
her husband's education.
 PH: Court of appeals upheld the trial court's ruling and there was no abuse of discretion in not awarding
the wife maintenance, because she failed to meet the threshold requirements of need.
 HOLDING: Affirmed in part, reversed in part. Educational degree is not marital property. Graham
v. Graham affirmed. However, the trial court should reevaluate the determination on maintenance. On
remand she was awarded $600/ month maintenance
Reimbursement maintenance: if you have someone, for a lengthy time, that supports the family (wife supports
while man is in school for 11 years) should the wife be reimbursed for her contribution to the family while the
man was in school?
Supporting spouses are entitled to restitution of money spent in order to prevent unjust
enrichment
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IRMO Weinstein (Ill. App. 1984): Husband's osteopath degree and his license to practice surgery were not
marital property (2) whether both spouses testified extensively on their past, current and future earning
potentials and trial court specifically took into consideration disproportionate earning capacity in awarding 62%
of marital estate to wife, trial court did not err in refusing to admit wife's offered expert testimony as to value of
husband's osteopathic degree and license to practice surgery, offered by wife on grounds that she had a property
interest therein. While the degree is not an asset, the degree can be taken into consideration in dividing up
assets for determining if there will be financial support due. I.e.: ability to generate futue income
MAINTENANCE / ATTORNEYS FEES
IRMO Larocque, Supreme Court of Wisconsin, 1987. 139 Wis.2d 23
 2 cases: LaRoque: court divided property awarding wife limited term maintenance of $1500/ month for
5 mnths and then $1000 per month for 13 months. The court of appeals held that the circuit court abused
its discretion in terminating maintenance at the end of 18 months.
 Second Case: Circuit court order denied Rosalie LaRocque's post-judgment motion to revise the
maintenance award and granted her a contribution of approximately 20% of her appellate attorney's fees
 FACTS: Married in 1959 man's total income during the marriage was $548,987. After dissolution wife
got the house and car. Husband got his retirement fund. During separation husband paid the family bills
of over $1600/month and paid wife $372 every two wkeeks. Over the 2 year separation wife's standard
of living decreased
 PH: In awarding maintenance the circuit court found that wife could work as an elementary school
teacher upon certification and found that her earning capacity was between $12-15,000/year and her
future earning capacity was $25,000/yr. 18 months maintenance to allow wife to go to school to get her
certification for teaching. Court also recognized that husband indicated he would provide for the
children who would be going to college
 APPEAL: Wife appealed arguing that both the amount and duration of the maintenance award were
inadequate. Court of appeals upheld the amount of maintenance but reversed the time limitation on
maintenance.
 LAW: Factors to consider in determining maintenance: Court may grant maintenance payments to
either party after considering: length of marriage, and physical and emotional health of the parties,
division of property, educational levels of each party, earning capacities, Feasibility that the party
seeking maintenance can become self supporting at a standard of living reasonably comparable that
enjoyed during the marriage, tax consequences to each party, mutual agreements of the parties before or
during the marriage, contribution by one party to the education, training, or increased earnin power of
the other. Two objectives of maintenance: tyo support the recipienct spouse in accordance with the
needs and earning capacities of the parties (the support objective) and to ensure a fair and
equitable financial arrangement between the parties in each individual case (fairness objective)
 HOLDING: The circuit court abused its discretion in setting the amount and duration of the
maintenance award. Accordingly the court affirms the part of the court of appeal's decision that reversed
the circuit court's judgment limiting the duration of maintenance to 18 months, but reverses the court of
appeals decision that set the amount of monthly maintenance and vacates that decision. Nothing in the
record supports the contention that the wife would be certified and employable after 18 months.
o By construing the support objective too narrowly and disregarding the fairness objective, the
circuit court mistook subsistence to be the objective of maintenance and awarded an inadequate
amount.
o Where a spouse has subordinated his or her own education or career to devote time and energy to
the welfare, career or education of the other spouse or to managing the affairs of the marital
partnership, maintenance may be used to compensate this spouse for these nonmonetary
contributions to the marriage
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o Reasonable maintenance award is measure not by the average annual earnings over the duration
of a long marriage, but by the lifestyle that the parties enjoyed in the years immediately before
the divorce and could anticipate enjoying if they were to stay married.
o Limited Maintenance Factors: The ability of the recipient spouse to become self-supporting by
the end of the maintenance periods at a standard of living reasonably similar to that enjoyed
before divorce; the ability of the payor spouse to continue the obligation of support for an
indefinite time; and the need for the court to continue jurisdiction regarding maintenance
ILLINOIS: the courts are authorized to award alimony where they find it "necessary" on the basis of a long list
of relevant factors (750 ILCS 5/504)
750 ILCS 5/504 MAINTENANCE
a) In a proceeding for dissolution of marriage or legal separation or declaration of invalidity of marriage, or a
proceeding for maintenance following dissolution of the marriage by a court which lacked personal jurisdiction
over the absent spouse, the court may grant a temporary or permanent maintenance award for either spouse in
amounts and for periods of time as the court deems just, without regard to marital misconduct, in gross or for
fixed or indefinite periods of time, and the maintenance may be paid from the income or property of the other
spouse after consideration of all relevant factors, including:
(1) the income and property of each party, including marital property apportioned and non-marital
property assigned to the party seeking maintenance;
(2) the needs of each party;
(3) the present and future earning capacity of each party;
(4) any impairment of the present and future earning capacity of the party seeking maintenance due to
that party devoting time to domestic duties or having forgone or delayed education, training, employment, or
career opportunities due to the marriage;
(5) the time necessary to enable the party seeking maintenance to acquire appropriate education,
training, and employment, and whether that party is able to support himself or herself through appropriate
employment or is the custodian of a child making it appropriate that the custodian not seek employment;
(6) the standard of living established during the marriage; (probably most important)
(7) the duration of the marriage;
(8) the age and the physical and emotional condition of both parties;
(9) the tax consequences of the property division upon the respective economic circumstances of the
parties;
(10) contributions and services by the party seeking maintenance to the education, training, career or
career potential, or license of the other spouse;
(11) any valid agreement of the parties; and
(12) any other factor that the court expressly finds to be just and equitable.
(b) (Blank).
(b-5) Any maintenance obligation including any unallocated maintenance and child support obligation,
or any portion of any support obligation, that becomes due and remains unpaid shall accrue simple interest as
set forth in Section 505 of this Act.
(b-7) Any new or existing maintenance order including any unallocated maintenance and child support
order entered by the court under this Section shall be deemed to be a series of judgments against the person
obligated to pay support thereunder. Each such judgment to be in the amount of each payment or installment of
support and each such judgment to be deemed entered as of the date the corresponding payment or installment
becomes due under the terms of the support order, except no judgment shall arise as to any installment coming
due after the termination of maintenance as provided by Section 510 of the Illinois Marriage and Dissolution of
Marriage Act or the provisions of any order for maintenance. Each such judgment shall have the full force,
effect and attributes of any other judgment of this State, including the ability to be enforced. A lien arises by
operation of law against the real and personal property of the obligor for each installment of overdue support
owed by the obligor.
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(c) The court may grant and enforce the payment of maintenance during the pendency of an appeal as the court
shall deem reasonable and proper.
(d) No maintenance shall accrue during the period in which a party is imprisoned for failure to comply with the
court's order for the payment of such maintenance.
(e) When maintenance is to be paid through the clerk of the court in a county of 1,000,000 inhabitants or less,
the order shall direct the obligor to pay to the clerk, in addition to the maintenance payments, all fees imposed
by the county board under paragraph (3) of subsection (u) of Section 27.1 of the Clerks of Courts Act. [FN1]
Unless paid in cash or pursuant to an order for withholding, the payment of the fee shall be by a separate
instrument from the support payment and shall be made to the order of the Clerk.
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The court must always be involved in making determinations on child support and custody
It is not necessary for the court the be involved in spousal support changes made between the parties
Child support is the amount the child would enjoy if the parents did not get divorced, so if the dad's
salary goes up, then the child support should go up
However- maintenance does not increase if the supporting spouse's salary increases, because the one
being supported is entitled to the standard of living DURING the marriage.
MAINTENANCE ISSUES: When can you modify it?
750 ILCS 5/510 (c) MODIFICATION AND TERMINATION OF PROVISIONS FOR MAINTENANCE,
SUPPORT, EDUCATIONAL EXPENSES, AND PROPERTY DISPOSITION.
(a) Except as otherwise provided in paragraph (f) of Section 502 and in subsection (b), clause (3) of Section
505.2, the provisions of any judgment respecting maintenance or support may be modified only as to
installments accruing subsequent to due notice by the moving party of the filing of the motion for modification.
An order for child support may be modified as follows:
(1) upon a showing of a substantial change in circumstances; and
(2) without the necessity of showing a substantial change in circumstances, as follows:
(A) upon a showing of an inconsistency of at least 20%, but no less than $10 per month, between
the amount of the existing order and the amount of child support that results from application of the guidelines
specified in Section 505 of this Act unless the inconsistency is due to the fact that the amount of the existing
order resulted from a deviation from the guideline amount and there has not been a change in the circumstances
that resulted in that deviation; or
B) Upon a showing of a need to provide for the health care needs of the child under the order
through health insurance or other means. In no event shall the eligibility for or receipt of medical assistance be
considered to meet the need to provide for the child's health care needs.
The provisions of subparagraph (a)(2)(A) shall apply only in cases in which a party is receiving child
support enforcement services from the Illinois Department of Public Aid under Article X of the Illinois Public
Aid Code, [FN1] and only when at least 36 months have elapsed since the order for child support was entered or
last modified.
(a-5) An order for maintenance may be modified or terminated only upon a showing of a
substantial change in circumstances. In all such proceedings, as well as in proceedings in which
maintenance is being reviewed, the court shall consider the applicable factors set forth in subsection (a)
of Section 504 and the following factors:
(1) any change in the employment status of either party and whether the change has been made
in good faith;
(2) the efforts, if any, made by the party receiving maintenance to become self-supporting, and
the reasonableness of the efforts where they are appropriate;
(3) any impairment of the present and future earning capacity of either party;
46
(4) the tax consequences of the maintenance payments upon the respective economic
circumstances of the parties;
(5) the duration of the maintenance payments previously paid (and remaining to be paid) relative
to the length of the marriage;
(6) the property, including retirement benefits, awarded to each party under the judgment of
dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage and
the present status of the property;
(7) the increase or decrease in each party's income since the prior judgment or order from which
a review, modification, or termination is being sought;
(8) the property acquired and currently owned by each party after the entry of the judgment of
dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage; and
(9) any other factor that the court expressly finds to be just and equitable.
(b) The provisions as to property disposition may not be revoked or modified, unless the court finds the
existence of conditions that justify the reopening of a judgment under the laws of this State.
(c) Unless otherwise agreed by the parties in a written agreement set forth in the judgment or
otherwise approved by the court, the obligation to pay future maintenance is terminated upon the death
of either party, or the remarriage of the party receiving maintenance, or if the party receiving
maintenance cohabits with another person on a resident, continuing conjugal basis.
(d) Unless otherwise provided in this Act, or as agreed in writing or expressly provided in the judgment,
provisions for the support of a child are terminated by emancipation of the child, or if the child has attained the
age of 18 and is still attending high school, provisions for the support of the child are terminated upon the date
that the child graduates from high school or the date the child attains the age of 19, whichever is earlier, but not
by the death of a parent obligated to support or educate the child. An existing obligation to pay for support or
educational expenses, or both, is not terminated by the death of a parent. When a parent obligated to pay support
or educational expenses, or both, dies, the amount of support or educational expenses, or both, may be enforced,
modified, revoked or commuted to a lump sum payment, as equity may require, and that determination may be
provided for at the time of the dissolution of the marriage or thereafter.
(e) The right to petition for support or educational expenses, or both, under Sections 505 and 513 is not
extinguished by the death of a parent. Upon a petition filed before or after a parent's death, the court may award
sums of money out of the decedent's estate for the child's support or educational expenses, or both, as equity
may require. The time within which a claim may be filed against the estate of a decedent under Sections 505
and 513 and subsection (d) and this subsection shall be governed by the provisions of the Probate Act of 1975,
[FN2] as a barrable, noncontingent claim.
(f) A petition to modify or terminate child support, custody, or visitation shall not delay any child
support enforcement litigation or supplementary proceeding on behalf of the obligee, including, but not limited
to, a petition for a rule to show cause, for non-wage garnishment, or for a restraining order.
IRMO Mohr (Ill. App. 1994): Permanent maintenance that wife relinquished upon her second marriage could be
considered in determining maintenance upon dissolution of second marriage.
Very peculiar facts. Marriedto John, divorces him but getting $5k/ month... then she remarries the same
guy, and divorces him a second time and says for the court to take into consideration that he previously paid her
$5k/ month. VERY WEAK PRECEDENT
REAL PRINCIPLE: Is that if she gives up the money to get remarried that doesn't matter because its
about the standard of living during the marriage.
Fault: State statutes are almost evenly divided between jurisdictions in which the courts are permitted to
consider marital misconduct in deciding whether to order alimony and what it amounts, and jurisdictions which
are prohibited from considering misconduct in the assessment of spousal support awards. 29 states and DC
allow consideration of marital fault. ILLINOIS: Does not allow consideration of fault
Rehabilitative Alimony: Limited term spousal support orders are frequently described as rehabilitative,
designed to enable dependent spouse to get the education or training necessary to be financially self-sufficient.
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Brabec v. Brabec (Wis. App. 1993): Wife's conduct in attempting to hire someone to kill her former husband
was not marital misconduct which could not be considered by trial court in ordering maintenance, where wife's
misconduct was not related to marital relationship and had nothing to do with break up of marriage and
prohibiting trial court from considering wife's attempt to have her former husband killed would achieve
unreasonable result in that wife would receive maintenance whereas if she had been successful in her attempt
she would receive none.
When wife solicited man to kill her ex husband, this was not marital misconduct because the marriage
was already over. This means the court could take the wife's conduct into account
Attorneys Fees (p. 778): Are awarded on substantially the same reasoning as temporary spousal support. If the
applicant requires legal advice in order to present a claim or defense, does not have the money to pay a lawyer,
and the other spouse is able to bear that expense, the other spouse will be ordered to do so. When litigation is in
prospect, the services of a lawyer are as necessary an element of support as the serviced of a physician when
one is ill.
750 ILCS 5/ 501 (c-1) Temporary Relief: LEVELING THE PLAYING FIELD
(c-1) As used in this subsection (c-1), "interim attorney's fees and costs" means attorney's fees and costs
assessed from time to time while a case is pending, in favor of the petitioning party's current counsel, for
reasonable fees and costs either already incurred or to be incurred, and "interim award" means an award of
interim attorney's fees and costs. Interim awards shall be governed by the following:
1) Except for good cause shown, a proceeding for (or relating to) interim attorney's fees and costs shall be
nonevidentiary, summary in nature, and expeditious (is NO TRIAL). When a party files a petition for
interim attorney's fees and costs supported by one or more affidavits that delineate relevant factors, the court (or
a hearing officer) shall assess an interim award after affording the opposing party a reasonable opportunity to
file a responsive pleading. A responsive pleading shall set out the amount of each retainer or other payment or
payments, or both, previously paid to the responding party's counsel by or on behalf of the responding party. In
assessing an interim award, the court shall consider all relevant factors, as presented, that appear reasonable and
necessary, including:
(A) the income and property of each party, including alleged marital property within the sole control of one
party and alleged non-marital property within access to a party;
(B) the needs of each party;
(C) the realistic earning capacity of each party;
(D) any impairment to present earning capacity of either party, including age and physical and emotional health;
(E) the standard of living established during the marriage;
(F) the degree of complexity of the issues, including custody, valuation or division (or both) of closely held
businesses, and tax planning, as well as reasonable needs for expert investigations or expert witnesses, or both;
(G) each party's access to relevant information;
(H) the amount of the payment or payments made or reasonably expected to be made to the attorney for the
other party; and
(I) any other factor that the court expressly finds to be just and equitable.
5/503(j) DISPOSITION OF PROPERTY
(j) After proofs have closed in the final hearing on all other issues between the parties (or in conjunction with
the final hearing, if all parties so stipulate) and before judgment is entered, a party's petition for contribution to
fees and costs incurred in the proceeding shall be heard and decided, in accordance with the following
provisions (unless the person waives the right for a contribution hearing the following hearing will occur):
(1) A petition for contribution, if not filed before the final hearing on other issues between the parties,
shall be filed no later than 30 days after the closing of proofs in the final hearing or within such other period as
the court orders.
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(2) Any award of contribution to one party from the other party shall be based on the criteria for division
of marital property under this Section 503 and, if maintenance has been awarded, on the criteria for an award of
maintenance under Section 504.
(3) The filing of a petition for contribution shall not be deemed to constitute a waiver of the attorneyclient privilege between the petitioning party and current or former counsel; and such a waiver shall not
constitute a prerequisite to a hearing for contribution. If either party's presentation on contribution, however,
includes evidence within the scope of the attorney-client privilege, the disclosure or disclosures shall be
narrowly construed and shall not be deemed by the court to constitute a general waiver of the privilege as to
matters beyond the scope of the presentation.
(4) No finding on which a contribution award is based or denied shall be asserted against counsel or
former counsel for purposes of any hearing under subsection (c) or (e) of Section 508.
(5) A contribution award (payable to either the petitioning party or the party's counsel, or jointly, as the
court determines) may be in the form of either a set dollar amount or a percentage of fees and costs (or a portion
of fees and costs) to be subsequently agreed upon by the petitioning party and counsel or, alternatively,
thereafter determined in a hearing pursuant to subsection (c) of Section 508 or previously or thereafter
determined in an independent proceeding under subsection (e) of Section 508.
(6) The changes to this Section 503 made by this amendatory Act of 1996 apply to cases pending on or
after June 1, 1997, except as otherwise provided in Section 508.
750 ILCS 5/508 Attorney's Fees; Client's Rights and Responsibilities Respecting Fees and Costs.
(in part)
(a) The court from time to time, after due notice and hearing, and after considering the financial
resources of the parties, may order any party to pay a reasonable amount for his own or the other party's costs
and attorney's fees. Interim attorney's fees and costs may be awarded from the opposing party, in accordance
with subsection (c-1) of Section 501. At the conclusion of the case, contribution to attorney's fees and costs may
be awarded from the opposing party in accordance with subsection (j) of Section 503. Fees and costs may be
awarded to counsel from a former client in accordance with subsection (c) of this Section. Awards may be made
in connection with the following:
(1) The maintenance or defense of any proceeding under this Act.
(2) The enforcement or modification of any order or judgment under this Act.
(3) The defense of an appeal of any order or judgment under this Act, including the defense of appeals
of post-judgment orders.
(3.1) The prosecution of any claim on appeal (if the prosecuting party has substantially prevailed).
(4) The maintenance or defense of a petition brought under Section 2-1401 of the Code of Civil
Procedure [FN1] seeking relief from a final order or judgment under this Act.
(5) The costs and legal services of an attorney rendered in preparation of the commencement of the
proceeding brought under this Act.
(6) Ancillary litigation incident to, or reasonably connected with, a proceeding under this Act.
The court may order that the award of attorney's fees and costs (including an interim or contribution award)
shall be paid directly to the attorney, who may enforce the order in his or her name, or that it shall be paid to the
appropriate party. Judgment may be entered and enforcement had accordingly. Except as otherwise provided in
subdivision (e)(1) of this Section, subsection (c) of this Section is exclusive as to the right of any counsel (or
former counsel) of record to petition a court for an award and judgment for final fees and costs during the
pendency of a proceeding under this Act.
(b) In every proceeding for the enforcement of an order or judgment when the court finds that the failure
to comply with the order or judgment was without compelling cause or justification, the court shall order the
party against whom the proceeding is brought to pay promptly the costs and reasonable attorney's fees of the
prevailing party. If non-compliance is with respect to a discovery order, the non-compliance is presumptively
without compelling cause or justification, and the presumption may only be rebutted by clear and convincing
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evidence. If at any time a court finds that a hearing under this Section was precipitated or conducted for any
improper purpose, the court shall allocate fees and costs of all parties for the hearing to the party or counsel
found to have acted improperly. Improper purposes include, but are not limited to, harassment, unnecessary
delay, or other acts needlessly increasing the cost of litigation.
TERMINATION OF MAINTENANCE / MODIFICATION
Konzelman v. Konzelman, 158 NJ 185 (1999)
 ISSUE: Enforceability of a divorce judgment incorporating a property settlement agreement that
authorized the termination of the husband's support and maintenance payments in the event of the wife's
cohabitation with an unrelated male.
 FACTS: Married for 27 years. In 1991, Through divorce decree entered into Property Settlement
Agreement which provided that Mr. Konzelman's support and maintenance obligation of $700/ week
would terminate if Mrs. Konzelman cohabitated with an unrelated adult male for a period of 4
continuous months. Husband hired two private investigators to determine if wife was living with man.
Investigation revealed that Mr. Liput was staying at wife's house most evenings, used the house phone
number as a contact number, answered the door, and did yard work around the house. Husband therefore
terminated alimony.
 PH: Wife filed motion and accompanying certificate denying cohabitation and demanded the resumption
of alimony payments and arrearage. Husband filed cross motion to terminate support and maintenance.
Trial court ordered husband to pay support arreared and resume payment until a plenary hearing could
be held. Hearing established wife's monogamous relationship with Liput. Hearing= joint bank account,
family vacations paid for my Liput, Liput had no key to wife's home, but knew the key code to disarm
the alarm system. Court held cohabitation but determined that husband should still pay support minus
the $170 wife got from Mr. Liput.
 APPEAL: Challenged the trial court's refusal to enforce the cohabitation provision of divorce
agreement. Appellate division reversed
 HOLDING: Because the provision terminating alimony upon cohabitation is fair under the
circumstances of this case the court affirmed the appellate courts decision to terminate alimony.
 A provision of a property settlement agreement, freely entered into, which causes permanent
alimony to terminate if the dependent spouse enters into a new relationship which has all the
indicia of marriage except a license is enforceable
PAGE 782: Gayet: NJ Case: The court determined that cohabitation of the dependent spouse without more was
not a changed circumstance that could justify the reduction or terminatorn of alimony by the supporting spouse.
Cohabitation constitutes a change of circumstances only if coupled with economic consequences; the economic
benefit enuring to either cohabitator must be sufficiently material to justify relied.
** In many states alimony orders are modifiable on proof that relevant circumstances have changed since the
divorce decree BUT a decree dividing the spouses' property is generally not modifiable except on grounds
which warrant the reopening of a judgment (fraud etc).
ILLINOIS: Spousal support terminates upon death, remarriage, or cohabitation
Some states define cohabitation
IRMO Rassier, 96 Cal.App.4th (2002), CA Court of Appeals, Second District
 Appeal from an order of the LA Superior Court modifying a spousal support obligation imposed upon
Patrick Rassier by order of a Florida Court in a 1985 FL dissolution of marriage judgment.
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FACTS: Married, lived, and divorced in Florida. Husband ordered to pay permanent spousal support of
$900/ month to wife which would terminate only upon death or wife's remarriage. After divorce wife
moved to Guam and husband to CA. 1998 (14 years after divorce) husband stopped making payments.
199 wife sought to enforce the FL spousal support order in LA Superior Court because at that time
Patrick was a resident of CA. Husband's waged were garnished. Patrick filed order to show cause in the
same proceeding and asked the CA court to terminate the Fl court's spousal support order. Wife argued
CA court didn’t have jurisdiction to terminate order. Superior court granted husband's request holding
that FL no longer had exclusive and continuing jurisdiction over either party because neither party
resided in Florida.
Law: 4909(f): A tribunal of this state may not modify a spousal support order issued by a tribunal of
another state having continuing exclusive jurisdiction over that order under the law of that state.
o Subdivision 6: A tribunal of this state [Florida] issues a support order has continuing exclusive
jurisdiction over a spousal support order throughout the existence of the support obligation
HOLDING: Section 4909 subdivision f, the court was precluded from modifying or terminating the
order, and thus precludes modification of the FL spousal support order. Reversed and Remanded,
Notwithstanding that neither of thee parties now reside in Florida, a CA court does not have the power
to modify a spousal support order issued by the FL court.
ILLINOIS: Uniform Interstate Family Support Act (UIFSA) p. 1118, 750 ILCS 22/100
750 ILCS § 502. Agreement. (a) To promote amicable settlement of disputes between parties to a marriage
attendant upon the dissolution of their marriage, the parties may enter into a written or oral agreement
containing provisions for disposition of any property owned by either of them, maintenance of either of them
and support, custody and visitation of their children.
(b) The terms of the agreement, except those providing for the support, custody and visitation of
children, are binding upon the court unless it finds, after considering the economic circumstances of the parties
and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the
agreement is unconscionable.
(c) If the court finds the agreement unconscionable, it may request the parties to submit a revised
agreement or upon hearing, may make orders for the disposition of property, maintenance, child support and
other matters.
(d) Unless the agreement provides to the contrary, its terms shall be set forth in the judgment, and the
parties shall be ordered to perform under such terms, or if the agreement provides that its terms shall not be set
forth in the judgment, the judgment shall identify the agreement and state that the court has approved its terms.
(e) Terms of the agreement set forth in the judgment are enforceable by all remedies available for
enforcement of a judgment, including contempt, and are enforceable as contract terms.
(f) Except for terms concerning the support, custody or visitation of children, the judgment may
expressly preclude or limit modification of terms set forth in the judgment if the agreement so provides.
Otherwise, terms of an agreement set forth in the judgment are automatically modified by modification
of the judgment.
 You can say that the agreement is not modifiable for any reason whatsoever in the agreement
IRMO Herrin (Ill. App. 1994): Following dissolution of marriage ex-husband petitioned for termination of his
maintenance obligation on ground that his former wife was engaged in "resident, continuing, conjugal
cohabitation" with third party.
Maintenance will be terminated based upon support obligee's resident, continuing conjugal cohabitation
with 3rd party, if ex-spouse paying maintenance can show that a de facto husband and wife relationship between
parties
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Rationale behind terminating maintenance when support obligee engages in resident, continuing,
conjugal cohabitation with third party is the inequity created when support obligee becomes involved in
husband and wife relationship does not legally formalize it, with result that he or she may continue to receive
maintenance.
Among the factors that divorce court should consider in deciding whether to terminate
maintenance on the ground that support obligee is involved in "resident, continuing, conjugal
cohabitation" with third party are: length of relationship between support obligee and third party;
amount of time that they spend together; nature of activities in which they engage; interrelation of their
personal affairs; whether they vacation together; and whether they spend their holidays together.
Divorce court need not find as a prerequisite to terminate support obligor's maintenance obligation
on the ground that his or her ex-spouse is engaged in resident continuing conjugal cohabitation with third party
that ex spouse's relationship with 3rd party has had a material effect on ex spouses need for support;
effect of relationship on ex-spouses need for support is merely one factor for divorce court to consider in
deciding whether required de factor husband and wife relationship exists.
§ 510. Modification and termination of provisions for maintenance, support, educational expenses, and
property disposition.
c) Unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved
by the court, the obligation to pay future maintenance is terminated upon the death of either party, or the
remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another
person on a resident, continuing conjugal basis.
Remarriage (p. 792): In NJ and other states, spousal support terminated on the remarriage of the recipient.
Taylor v. Taylor (VT. 2002)- Before the court could modify a maintenance order, it must find that there has
been a real, substantial and unanticipated change of circumstances; if the requisite change has not occurred, the
court has no jurisdiction to modify the order
Wife remarried a really rich guy so the ex husband is thinking that we should terminate all alimony
instead of reducing it to 50%. The court said that even though there was the agreement that the trial court could
consider the ground he alleged, it seemed that his maintenance was a property distribution so he would HAVE
to pay it off. If it was not regarding property distribution it could be changed
750 ILCS 5/502 AGREEMENT
(f) Except for terms concerning the support, custody or visitation of children, the judgment may expressly
preclude or limit modification of terms set forth in the judgment if the agreement so provides. Otherwise, terms
of an agreement set forth in the judgment are automatically modified by modification of the judgment.
Maher v. Maher (Wyo. 2004)- Former husband filed motion to terminate alimony obligation after wife
remarried. The Supreme court held that the husband, not the wife, had the burden to show substantial change of
circumstances on notion to terminate alimony. *** July 2004 exam (2).
Williams v. Williams (Conn. 2005): May 2006: Issue of someone remarrying and whether or not there is a
sufficient basis to terminate or modify the maintenance that was in effect. The statute that was in effect in state
A said unless and to the extent that precludes modification any alimony can be set aside modified upon showing
a substantial change of either party.
Wife got remarried and so husband simply attached a copy of the marriage certificate. This was not
enough to show a substantial change in circumstances
IRMO Harris (Ill. App. 1990): Former wife brought action to vacate agreed order terminating former husband's
maintenance obligation. The court held that "remarriage" within the meaning of statute which terminates
maintenance upon remarriage of recipient meant ceremony of marriage, rather than status of marriage.
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Cohabitation (p. 792): Cohabitation of financially dependent spouse is generally not a sufficient basis for
modification of spousal support.
Courts are divided on the question of whether a spousal support obligation , terminated when the recipient
remarries, can be reinstates if the marriage ends in divorce or annulment. NOT IN ILLINOIS
IRMO Frasco (Ill. App. 1994): Woman taking care of grown disabled daughter becomes homeless. Charitable
man tells her that they can come live with her. They open up a joint account. They have kissed on occasion,
gone on vacation together, but there was no sexual component to their relationship. The judge found that this
lady- even after receiving contributions from the charitable man, still needs the first husband's contributions.
However- the relationship with the new man was a marriage like relationship. SEX IS NOT A NCESSARY
COMPONENT
Fact that former wife lives with another man does not automatically justify termination of maintenance
pursuant to section of the Marriage and Dissolution Act but requires a showing of a de facto husband and wife
relationship 510(c)
Evidence supported the conclusion that the former wife was cohabitating with another person on a
resident, continuing conjugal basis justifying termination of maintenance supports. The domestic arrangement
of the former wife and cohabitant conformed to the traditional model of marriage: they made a joint checking
account in which they commingled funds, they had an exclusive dating relationship, which continued when
cohabitant moved out of residence in response to continuing litigation of former husband.
§ 510. Modification and termination of provisions for maintenance, support, educational expenses, and
property disposition.
c) Unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved
by the court, the obligation to pay future maintenance is terminated upon the death of either party, or the
remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another
person on a resident, continuing conjugal basis.
IRMO Caradonna (Ill. App. 1990)- an important consideration in determining whether continuing conjugal
cohabitation by a former spouse who is receiving maintenance warrants termination of other former spouse's
obligation to pay future maintenance is whether the cohabitation has materially affected the recipient spouse's
need for support because he or she either receives support from the co-resident or used maintenance monies to
support the co-resident.
Wife's living with another person for a short period of time was not sufficient to support mainte
IRMO Sappington (Ill. 1985): Conjugal does not mean sexual relationship. "Conjugal" as used in section of
Illinois Marriage and Dissolution of Marriage Act authorizing termination of maintenance if recipient cohabits
with another person on a resident, continuing "Conjugal" basis does not necessarily require the parties to
engage in sexual intercourse or sexual conduct.
Even though in this case the relationship was such that it demanded termination of maintenance, the
court did not totally rule out there being some sort of financial aspect that has to be examined.
IRMO Weisbruch (Ill. App. 1999): Ex-wife from first marriage receiving maintenance and gets into a
relationship with another woman. ILLINOIS= cohabitation with a PERSON.
Facts of the case were such that there was no sexual relationship between these two women. They were
basically ROOMATES, but they did share expenses, they did go out to dinner occasionally together. They both
occasionally dated men.
Conjugal: intertwined on a social, psychological, and
MAINTENANCE TERMINATED
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Gajovski v. Gajovski (Ohio App. 1991): Marriage is permitted only between members of the opposite sex, and
that requirement applied even to situations where on party has obtained such gender status by means of
transsexual surgery. One's gender at birth is one's gender throughout life
Kripp v. Kripp (Pa. 2004): Can "cohabitate" mean living with someone of the same sex? In this case the
appellate court said that the word cohabitate was not ambiguous and it means to live with someone and it was
limited to living with someone of the opposite sex. REVERSED: "cohabitate" is not limited to opposite sex
couples.
Reinstatement (p. 793): Courts are divided on the question of whether a spousal support obligation, terminated
when the recipient remarries, can be reinstated if the marriage ends in divorce or annulment.
Rickner v. Frederick (Mich. 1999)- Court was authorized to reinstate alimony (MINORITY view)
Amundsen (S.D. 2002)- Former wife was entitled to alimony from former husband during the short time in
which she was remarried; wife showed extraordinary circumstances justifying the continuance of alimony from
ex husband. There was apparently fraud in the 2nd marriage. This is an EXCEPTIONAL situation. The burden is
on the recipient to show a situation exists to warrant continued alimony.
QUESTION 2 July 2002
Moore v. Jacobsen (Md. 2003): Some provision in alimony agreement that modification not allowable by a
court. There was a statutory provision in MD that allowed alimony to be terminated on remarriage. Does this
mean it was non terminable. Court held that termination is not equivalent to modification. So- alimony
could be terminated upon remarriage
Carlos v. Lane (Ga. 2002): Clause in agreement that they waive their statutory right of future modification up or
down regarding the financial circumstances of either party. The parties said they gave up their opportunity to
change the amount of maintenance. In that same provision it said that statutory modification rights waived
include those granted in the GA statute et sequencia (and following). The court said by using the phrase et
sequencia the couples were waiving all rights following the GA statute including the right to modify/ terminate
the agreement upon remarriage.
CONTEMPT
Decker v. Decker, Supreme Court of Washington, En Banc, 1958
 A contempt proceeding b an ex-wife to compel her ex-husband to comply with a provision of a divorce
decree which required him to pay certain community debts incurred prior to the divorce.
 ISSUE: Whether the constitutional prohibition against imprisonment for debt bars the trial court from
using contempt powers and imprisonment to enforce with the aforementioned provision of the divorce
decree
 HOLDING: Contempt proceedings are a proper remedy to enforce the court's order with respect to
property settlements—whether or not the settlement was previously agreed to by the parties, so long as it
is embodied or incorporated by reference in the divorce decree. The Husband may be imprisoned until
he complies with the court's order unless: (1) he can show that he does not have the means to comply
with the order or (2) he can show that the particular provision sought to be enforced has no reasonable
relationship to his duty to support his wife and/or children.
 Spousal and child support arrearages are not debts for the purposes of constitutional prohibitions
against imprisonment for debt.
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Civil v. criminal contempt (p. 804, 936): Contempt proceedings may be either civil or criminal. Civil
contempt proceedings are intended to coerce the D into complying with the court's decree. The act must be
within his or her power to perform, and the contempt order must state how the contempt may be purges.
Imprisonment following a citation for civil contempt is for an indefinite term until the respondent complies with
the divorce decree. Judge can still impose prison sentence, but if the guy comes up with the money needed then
it can be waived
Criminal contempt proceedings have the purpose of punishing repeated or aggravated
disobedience of court orders. All of the safeguards of criminal law and procedure apply. Commitment is for a
definite term. A sentence for criminal contempt, based on a failure to pay child support.
The supreme court held that it is necessary to determine first whether a contempt proceeding is criminal
or civil in nature. If the contempt proceeding is criminal, a state rule presuming D's ability to pay would be a
violation of due process because it would result in criminal liability without proof beyond a reasonable doubt. If
the contempt were civil, the ability to pay need not be proved beyond a reasonable doubt.
TAX CONSEQUENCES / BANKRUPTCY
Federal Income Tax (p. 806)
 Taxpayers will be treated as married for a given tax year if, as of the last day of the year, they have no
received a final divorce or separation decree
 Temporary support paid in the months prior to the divorce in the year in which the divorce becomes
final may be taxable to the recipient as alimony
 A husband and wife who file joint income tax returns during their marriage remain jointly and severally
liable for any underpayment of taxes during those years
 Alimony payments are deductible from the income of the payer and included in the taxable income of
the receiving spouse (this is not true of payments made to effectuate a property division between the
husband and wife, or payments made for child support).
 IRS Code- In order to have payments treated as alimony for tax purposes the parties' agreement/ decree
must conform to the following requirements
o Payments made in cash
o Must be received under divorce or separation decree
o Decree cannot designate payments as non taxable
o Parties can't be living in the same household
o No post death obligations
o If money is for the children it is not alimony
 Domestic Relations Tax Reform Act provides that no gain or loss is to be recognized on transfers of
property between spouses or between former spouses if the transfer is incident to divorce. No tax on
property transfers pursuant to divorce decree
Publication 504
Rykiel v. Rykiel (Fla. 2003): Divorce decree could provide that alimony payments were to be excluded from
gross income of payee and not deducted by payor; in such a case the payments do not constitute alimony for tax
purposes, are not included in the gross income of the recipient and are nontaxable to the recipient
Bankruptcy (p. 811): Filing for bankruptcy relief by either husband or wife prior to or during the litigation of a
divorce will trigger the automatic stay provisions of the federal bankruptcy laws. The automatic stay suspends
equitable distribution. In order to proceed with the property aspects of the divorce case, the non-debtor spouse
must have the automatic stay lifted by the bankruptcy court. Alimony, child support, and property division
obligations are nondischargeable unless the debtor does not have the ability to pay or the court concludes that
the benefit to the debtor of a discharge would outweigh the detrimental consequences to the debtor's former
spouse, or child.
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CHAPTER 7= liquidation, so all assets are given up
CHAPTER 13= this is a reorganization of goods/assets; some debts cane be discharged.
PROPERTY SETTLEMENTS (under 7) , CHILD SUPPORT/ SPOUSAL SUPPORT PAYMENTS
CANNOT BE DISCHARGED UNDER ALL BANKRUPTCY
Eden v. Chapski (7th Cir. 2005): With certain exceptions, state courts have concurrent jurisdiction with
bankruptcy courts to determine whether or not debt is dischargeable in bankruptcy
When husband and wife divorces the Illinois court ordered the husband to compensate the wife for
attorneys fees. The state court determined that this debt was not dischargeable in bankruptcy pursuant to 11
USC 523(a)(5) and thus survived husband's chapter 13 bankruptcy
SEPARATION AGREEMENTS / MEDIATION
IRMO Manzo, Supreme Court of CO, 1983, 659 P.2d 669
 Motion to set aside a separation agreement for division of marital property was granted in the district
court because the court found the agreement, measured by a fair just and reasonable standard, resulted in
a property division unconscionable under the Colorado Uniform Dissolution of Marriage Act
 FACTS: Agreement between husband and wife was that the wife would sell the house. After paying off
realtor fees and liens against the home she would get the first $60,000 net profit. Anything above
$60,000 net profit would go to the husband. Husband signed papers without attorney present. Home
listed at $129, but didn't sell. Lowered to $119, but wife said she thought it would sell between $100k
and $110k. At time of hearing wife made $800/ month and husband made $1800/ month
 APPEAL: Husband sought to set aside the separation agreement on the basis that when he signed it he
thought the home would sell for between $140- $150k, and since there was a unilateral mistake of face,
he requested the court set aside the agreement that the property division was not fair, just, or reasonable
 PH: Set aside the agreement, Granted wife custody of children and $250/ month child support. 60% of
proceeds from house sale to go to wife and 40% to husband
 HOLDING: Reversed: The division was fair, just, and reasonable
o The court may set aside a separation agreement property disposition provision without first
finding that the provision was improperly procured
o When viewed in light of the totality of the economic circumstances resulting from the agreement,
the provision was fair, just, and reasonable.
o Uniform Marriage and Divorce Act: In order to determine whether the agreement is
unconscionable, the court may look to the economic circumstances of the parties resulting from
the agreement and any other relevant evidence such as the conditions under which the agreement
was made, including the knowledge of the other party. If the court finds the agreement not
unconscionable, its terms respecting property division and maintenance may not be altered by the
court at the heading.
o There is no indication of overreaching, fraud, concealment of assets. Of sharp dealing
inconsistent with the obligations of the marital parties to deal fairly with each other. In light of
the totality of the economic circumstances which result from the agreement there is insufficient
evidence to support a finding that the agreement is not fair, just and reasonable.
o Unless the court finds it unconscionable the court must accept the parties agreement of
property distribution
750 ILCS 5/502 AGREEMENT
(f) Except for terms concerning the support, custody or visitation of children, the judgment may expressly
preclude or limit modification of terms set forth in the judgment if the agreement so provides. Otherwise, terms
of an agreement set forth in the judgment are automatically modified by modification of the judgment.
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Mediation (p. 832): ILLINOIS- can be ordered by the trial judge as per their discretion
Collaborative divorce: when couples and their lawyers agree to resolve the case by negotiation rather than
litigation, with the understanding that both lawyers will withdraw from representation if negotiations are
ultimately unsuccessful
750 ILCS 5/404 Conciliation; mediation.
(a) If the court concludes that there is a prospect of reconciliation, the court, at the request of either
party, or on its own motion, may order a conciliation conference. The conciliation conference and counseling
shall take place at the established court conciliation service of that judicial district or at any similar service or
facility where no court conciliation service has been established.
(b) The facts adduced at any conciliation conference resulting from a referral hereunder, shall not be
considered in the adjudication of a pending or subsequent action, nor shall any report resulting from such
conference become part of the record of the case unless the parties have stipulated in writing to the contrary.
The court, upon good cause shown, may prohibit conciliation, mediation or other process that requires
the parties to meet and confer without counsel.
Uniform Interstate Family Support Act (UIFSA) (p. 1118) / 750 ILCS 22/100
WILL BE QUESTION ON EXAM
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Section 102 Definitions
o "Duty of support" means an obligation imposed or imposable by law to provide support for a
child, spouse, or former spouse including an unsatisfied obligation to provide support
o "home state" means the state in which a child lived with a parent or a person acting as a
parent for as least 6 consecutive months immediately preceding the time of filing of a
petition or comparable pleading for support if a child is less than 6 months old, the state in
which the child lived from birth with any of them. A period of temporary absence of any of
them is counted as part of the 6-month or other period.
Section 201 Non resident Jurisdiction
o (a) In a proceedings to establish or to enforce a support order or to determine parentage, a
tribunal of this state may exercise personal jurisdiction over a non resident individual or the
individual's guardian or conservator if:
o (1) the individual is personally served within the state, (2) the person submits to the jurisdiction
of the state by consent, by entering a general appearance, or by filing a responsive document
having the effect of waiving any contest to personal jurisdiction, (3) the person resided with the
child in this State, (4) the person resided in the State and provided prenatal expenses or support
for the child, (5) the child resides in this state as a result of the acts or directives of the
individual, (6) the individual engaged in sexual intercourse in this State and the child may have
been conceived by that act of intercourse, (8) there is any other basis consistent with the
constitutions of this state and the US for exercise of personal jurisdiction
Section 202 Duration of Personal Jurisdiction
o Personal jurisdiction acquired by a tribunal of this state in a proceeding under this Act or other
law of this State relating to a support order continues as long as a tribunal of this State has
continuing, exclusive jurisdiction to modify its order or continuing jurisdiction to enforce its
order as provided by Section 205, 206, 211
Section 204 Simultaneous Proceedings
o (a) A tribunal of this State may exercise jurisdiction to establish a support order if the petition is
filed after a petition or comparable pleading is filed in another state only if:
o (1) the petition in this State is filed before the expiration of the time allowed in the other state for
filing a responsive pleading challenging the exercise of jurisdiction by the other state;
o (2) the contesting party timely challenges the exercise of jurisdiction in the other state; and
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o (3) if relevant, this State is the home state of the child.
o (b) A tribunal of this State may not exercise jurisdiction to establish a support order if the
petition is filed before a petition or comparable pleading is filed in another state if:
o (1) the petition or comparable pleading in the other state is filed before the expiration of the time
allowed in this State for filing a responsive pleading challenging the exercise of jurisdiction by
this State;
o (2) the contesting party timely challenges the exercise of jurisdiction in this State; and
o (3) if relevant, the other state is the home state of the child.
Section 205 Continuing, exclusive jurisdiction to modify child-support order.
o (a) A tribunal of this State that has issued a support order consistent with the law of this State has
and shall exercise continuing, exclusive jurisdiction to modify its child-support order if the order
is the controlling order and:
o (1) at the time of the filing of a request for modification this State is the residence of the obligor,
the individual obligee, or the child for whose benefit the support order is issued; or
o (2) even if this State is not the residence of the obligor, the individual obligee, or the child for
whose benefit the support order is issued, the parties consent in a record or in open court that the
tribunal of this State may continue to exercise the jurisdiction to modify its order.
o (b) A tribunal of this State that has issued a child-support order consistent with the law of this
State may not exercise continuing exclusive jurisdiction to modify the order if:
o (1) all of the parties who are individuals file consent in a record with the tribunal of this State
that a tribunal of another state that has jurisdiction over at least one of the parties who is an
individual or that is located in the state of residence of the child may modify the order and
assume continuing, exclusive jurisdiction; or
o (2) its order is not the controlling order
o (c) If a tribunal of another state has issued a child-support order pursuant to the Uniform
Interstate Family Support Act or a law substantially similar to that Act which modifies a childsupport order of a tribunal of this State, tribunals of this State shall recognize the continuing,
exclusive jurisdiction of the tribunal of the other state.
o (d) [FN1]A tribunal of this State that lacks continuing, exclusive jurisdiction to modify a childsupport order may serve as an initiating tribunal to request a tribunal of another state to modify a
support order issued in that state.
o (e) A temporary support order issued ex parte or pending resolution of a jurisdictional conflict
does not create continuing, exclusive jurisdiction in the issuing tribunal.
Section 207 Determination of Controlling Child Support Order
o (a) If a proceeding is brought under this Act and only one tribunal has issued a child-support
order, the order of that tribunal controls and must be so recognized.
o (b) If a proceeding is brought under this Act, and two or more child-support orders have been
issued by tribunals of this State or another state with regard to the same obligor and same child, a
tribunal of this State having personal jurisdiction over both the obligor and individual obligee
shall apply the following rules and by order shall determine which order controls :
o (1) If only one of the tribunals would have continuing, exclusive jurisdiction under this Act, the
order of that tribunal controls and must be so recognized.
o (2) If more than one of the tribunals would have continuing, exclusive jurisdiction under this
Act:
o (A) an order issued by a tribunal in the current home state of the child controls; but
o (B) if an order has not been issued in the current home state of the child, the order most recently
issued controls.
o (3) If none of the tribunals would have continuing, exclusive jurisdiction under this Act, the
tribunal of this State shall issue a child-support order, which controls.
o (c) If two or more child-support orders have been issued for the same obligor and same child,
upon request of a party who is an individual or a support enforcement agency, a tribunal of this
State having personal jurisdiction over both the obligor and the obligee who is an individual shall
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determine which order controls under subsection (b). The request may be filed with a registration
for enforcement or registration for modification pursuant to Article 6, or may be filed as a
separate proceeding.
(d) A request to determine which is the controlling order must be accompanied by a copy of
every child-support order in effect and the applicable record of payments. The requesting party
shall give notice of the request to each party whose rights may be affected by the determination.
(e) The tribunal that issued the controlling order under subsection (a), (b), or (c) has continuing
jurisdiction to the extent provided in Section 205 or 206.
(f) A tribunal of this State that determines by order which is the controlling order under
subsection (b)(1) or (2) or (c), or that issues a new controlling order under subsection (b)(3),
shall state in that order: (1) the basis upon which the tribunal made its determination; (2) the
amount of prospective support, if any; and (3) the total amount of consolidated arrears and
accrued interest, if any, under all of the orders after all payments made are credited as provided
by Section 209.
(g) Within 30 days after issuance of an order determining which is the controlling order, the
party obtaining the order shall file a certified copy of it in each tribunal that issued or registered
an earlier order of child support. A party or support enforcement agency obtaining the order that
fails to file a certified copy is subject to appropriate sanctions by a tribunal in which the issue of
failure to file arises. The failure to file does not affect the validity or enforceability of the
controlling order.
(h) An order that has been determined to be the controlling order, or a judgment for consolidated
arrears of support and interest, if any, made pursuant to this Section must be recognized in
proceedings under this Act
November 3, 2006
CHAPTER 9. CHILD SUPPORT
UIFSA
 You can have support orders registered in a different state from which it was issued, and you can ask the
respondent state to uphold the agreement
 UIFSA is in all 50 states, but there are different versions in some states, but the essential concepts are still
all the same
 All states that participate in child support must have UIFSA
 2004: Changes were made to the Act (Clark has the proper/latest version)
 Review of the following UIFSA Sections
o CONTINUING EXCLUSIVE JURISDICTION: this is the "heart of the law," but this has to be tied
in with the idea of the determination of a controlling support order. This means you have to look to
see if there is only one order or more than one order.
o Section 102 Definitions: "Home state" is most important definition; It becomes even more important
in dealing with child custody matters. Here we are dealing with child support.
 UIFSA deals with child support and spousal support
o Section 201 Non Resident Jurisdiction: the commentators who wrote the law say that only sections
1,2, and 8 have reference to alimony. All of the sections have reference to paying child support
 201(3) only applies to child support because it regards the child staying with a parent in one
state
o Section 202: Duration of personal jurisdiction: Once a court has jurisdiction and issues a support
order (child support, alimony, anything that relates to payment care of children/ spouse), it continues
as long as the state has continuing jurisdiction to modify its order (section 205) then you don't have
to look for another basis for jurisdiction because you already have it.
o Section 203: Initiating and responding tribunal state: One state can ask another state to do something
and vice versa. A state can ask another state to enforce an order. A lot of times you can have state
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agencies who take over, as the attorneys for those seeking child support, in order to get the other
state to enforce the child support order. Cook county has a department designated to enforcing child
support.
Section 204: Simultaneous proceedings: The question of what if one court finds out that there is a
petition pending in another state asking for child support, then everything stops for a moment. When
were the petitions filed? Has the person who has filed in our state, challenging jurisdiction in the
other state? The court in state B is stopped while things about the suit in state A are figured out
Section 205: Continuing exclusive jurisdiction to modify a support order. The obvious core relation
to section 207 (controlling section)> The tribunal of the state who has issued the order has and shall
exercise continuing jurisdiction to modify the support order, if the order is the controlling order, so
then you shift over to section 207 to figure out what is a controlling order.
 205(a): tribunal of the state has a continuing jurisdiction to modify it's order if it is
controlling AND (1) at the time of the filing a request for modification was the residence of
the obligor, or the residence of the child for who the support was ordered. If everyone moved
from the state, then the court loses continuing exclusive jurisdiction; OR (2) all parties agree
to jurisdiction in a record or open court to allow a court to continue jurisdiction to modify.
 205(b) tribunal that issued the order may NOT exercise jurisdiction to modify if (1) all the
parties file consent that another state has jurisdiction to modify the agreement. IEZ: If
divorced in IL, mom has permission to move w/ child to IA, dad still lives in IL, so IL still
has continuing exclusive jurisdiction. There is only one order so its controlling. Everyone
realizes some changes should be mad because mom is in IA, so they all consent to have IA
have jurisdiction to modify IL's order.
 205(b)(2): where there are 2 or more support orders. If original order in IL, someone moves
to PA, and they allow PA to make changes or to add provisions to the child support order so
PA has an order, then 207 is the controlling order
Section 207: In a determination of what is the controlling order, if there is only one, then it is the
controlling order. See chart in handouts on page 253
 207(b) if two or more orders you ask "if only one of those tribunals would have continuing
jurisdiction, the order of that tribunal controls." This means you go back and examine each
order under 205.
 More than one state can have continuing exclusive jurisdiction. If this is the case, then you
ask where the kid lives, what is the home state of the child
 Under 207(b)(2)(a) wherever the child is living, this is the state with jurisdiction
 207(b)(1)(B): If child doesn't live in either of the states then you look at the order that was
most recent controls
 207(e): Once you figure out the controlling order, section (e) says the tribunal that issued the
controlling order has jurisdiction under 205 and 206
Section 211: ALIMONY/ MAINTENANCE- tribunal of the state issuing spousal support order has
continuing jurisdiction to modify the order through the existence of the order. It just continues on.
Section 604: Concentrate on: WHAT LAW DO YOU USE, IF THE LAW IS DIFFERING IN TWO
JURISDICTIONS: i.e.: NY law says a child is emancipated at age 21. Illinois says age 18. Do you
follow NY or IL. Under the choice of law Section 604, you look at where the support order is
coming from. The law of the issuing state governs
 604(d) after controlling which state is the controlling order and the court issues arrears, then
the state issuing the controlling order is the one to be followed
 604(b) in a proceeding for arrears
Section 611 Modifying orders of another state.
 611(a) If section 613 does not apply, except as otherwise provided in 615
Section 615 (if a foreign country tribunal, a tribunal of this state can assume jurisdiction to modify
the order and bind all individuals without consent, if the other country has refused to modify the
laws, or does not have the legal ability to modify other laws
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neither child, petitioner, or respondent in an issuing state. In order to modify OH's order,
everyone must have moved from Ohio. The petitioner has to be a nonresident of the state
from which she is seeking modification
OLD EXAM QUESTION: You can actually have the problem where you're talking about child support and
child custody. UIFSA for child support and UCJEA for child custody. You can end up with the anomaly where
hearings for support are in state A, and hearings for custody are in State B.
Jurisdiction
Parker v. A.D.R., Supreme Court of Alaska, 1998, 960 P.2d 586
 Steve Parker, resident of CA, challenged the superior court o Alaska's jurisdiction in an action seeking a
judgment of paternity and child support. Parker was stationed in Alaska in 1978 while a member of the
Coast Guard. He engaged in sexual intercourse with an Alaskan resident which resulted in a child, also
an Alaskan resident.
 HOLDING: Trial court properly exercised personal jurisdiction over Parker. The paternity action arises
directly out of Parker's conduct in the state. If the D has purposefully directed his activities as resident of
he forum , and the litigation results from alleged injuries that arise out of or relate to those activities, he
should reasonably anticipate being haled into court in that forum.
 Parker purposefully directed his activities at the mother of his child, resulting in the child's birth. A
person engaging in sexual intercourse with a resident of Alaska, while in Alaska should foresee the
possibility that a child might be born and that a paternity and support action might be brought.
 UIFSA 201: Long arm jurisdiction over nonresidents
 Must have notice
UIFSA: Nothing about inconvenience versus child support act which has inconvenient forum clause
Guidelines / Amount of Support: Developed in each state in response to federal legislation. Congress requires
states to enact support guidelines as a condition of receiving federal funds for child support enforcement and for
support of TANF.
Mandated to bring child support awards to a level more nearly equal to the actual cost of raising
children, to reduce inconsistencies and variations between awards, and to enable courts to arrive at awards more
quickly.
Several types: (1) percentage of the non-custodial parent's income ILLINOIS; (2) income shares modelassumes parents with higher income will spend more on children and vice versa; courts determine total
combined income and then how much for children, divided between parents based on proportionality
MAJORITY
P.O.P.S. v. Gardner, US Court of Appeals, (9th Cir, 1993) 998 F.2d 764 p.865
 Parents opposed to Punitive Support challenged the constitutionality of the WA State Child Support
Schedule. POPS claimed that the law violated due process and equal protection but also that the
Schedule's economic table creates an irrebuttable presumption that violates the P's right to procedural
due process because parents cannot rebut the basic support obligation because the support obligation
does not breakdown the specific factors that go into consideration i.e.: how much is for housing, etc.
 Schedule is used to determine the amount of child support parents must pay upon divorce. The economic
table sets forth the basic child support obligation based on the combined family net income and number
of children. The basic support obligation is allocated between the parents based on each parent's share of
the family's net income.
 The schedule permits deviations from the presumptive support but requires written findings of fact to
explain any deviations. Several bases for deviation are enumerated but they are not all inclusive. These
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include: wealth, income of other adults in the household, liens or extraordinary debt, child support or
maintenance received or pair, children from other relationship, and nonrecurring income. Court may also
deviate if a child spends a significant amount of time with the obliged parent.
POPS: doesn't take into account each child's expenses, alienates non-custodial parents and impacts
family relationships so there should be strict scrutiny, results in high child support orders that are so high
they effectively bar some non-custodial parents from getting remarried
PH: District court granted the states motion for summary judgment, and ruled that the schedule did not
violate equal protection or due process
HOLDING: Affirmed: the Washington State Child Support Schedule does not violate Due Process or
Equal Protection. As long as there is a rational relationship between the operation of the Schedule and
the policy that Schedule serves it must stand. AND there is leeway in application of the guidelines
o The table does not purport to provide merely for the child's subsistence, but to sustain the child at
a standard of living concomitant with her divorcing parents' income.
o Rejects strict scrutiny: statute does not directly interfere with family relationships, and does not
bar non-custodial parents from entering or maintaining family relationships.
o Legit state interests: increasing adequacy of child support orders, increasing equity or orders,
reducing the adversarial nature of the proceedings by increasing voluntary settlements.
**There are sometimes reasons for not following the guidelines: consistency, cutting down on the
adversarial purpose,
§ 505. Child support; contempt; penalties.
(a) In a proceeding for dissolution of marriage, legal separation, declaration of invalidity of marriage, a proceeding for child support
following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, a proceeding for
modification of a previous order for child support under Section 510 of this Act, or any proceeding authorized under Section 501 or
601 of this Act, the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount
reasonable and necessary for his support, without regard to marital misconduct. The duty of support owed to a child includes the
obligation to provide for the reasonable and necessary physical, mental and emotional health needs of the child. For purposes of this
Section, the term "child" shall include any child under age 18 and any child under age 19 who is still attending high school.
(1) The Court shall determine the minimum amount of support by using the following guidelines:
Number of Children
1
2
3
4
5
6 or more
Percent of Supporting
Party's Net Income
20%
28%
32%
40%
45%
50%
(2) The above guidelines shall be applied in each case unless the court makes a finding that application of the guidelines would be
inappropriate, after considering the best interests of the child in light of evidence including but not limited to one or more of the
following relevant factors:
(a) the financial resources and needs of the child;
(b) the financial resources and needs of the custodial parent;
(c) the standard of living the child would have enjoyed had the marriage not been dissolved;
(d) the physical and emotional condition of the child, and his educational needs; and
(e) the financial resources and needs of the non-custodial parent.
If the court deviates from the guidelines, the court's finding shall state the amount of support that would have been required under the
guidelines, if determinable. The court shall include the reason or reasons for the variance from the guidelines.
(3) "Net income" is defined as the total of all income from all sources, minus the following deductions:
(a) Federal income tax (properly calculated withholding or estimated payments);
(b) State income tax (properly calculated withholding or estimated payments);
(c) Social Security (FICA payments);
(d) Mandatory retirement contributions required by law or as a condition of employment;
(e) Union dues;
(f) Dependent and individual health/hospitalization insurance premiums;
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(g) Prior obligations of support or maintenance actually paid pursuant to a court order;
(h) Expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income, medical
expenditures necessary to preserve life or health, reasonable expenditures for the benefit of the child and the other parent, exclusive of
gifts. The court shall reduce net income in determining the minimum amount of support to be ordered only for the period that such
payments are due and shall enter an order containing provisions for its self-executing modification upon termination of such payment
period.
(4) In cases where the court order provides for health/hospitalization insurance coverage pursuant to Section 505.2 of this Act, the
premiums for that insurance, or that portion of the premiums for which the supporting party is responsible in the case of insurance
provided through an employer's health insurance plan where the employer pays a portion of the premiums, shall be subtracted from net
income in determining the minimum amount of support to be ordered.
(4.5) In a proceeding for child support following dissolution of the marriage by a court that lacked personal jurisdiction over the
absent spouse, and in which the court is requiring payment of support for the period before the date an order for current support is
entered, there is a rebuttable presumption that the supporting party's net income for the prior period was the same as his or her net
income at the time the order for current support is entered.
(5) If the net income cannot be determined because of default or any other reason, the court shall order support in an amount
considered reasonable in the particular case. The final order in all cases shall state the support level in dollar amounts. However, if the
court finds that the child support amount cannot be expressed exclusively as a dollar amount because all or a portion of the payor's net
income is uncertain as to source, time of payment, or amount, the court may order a percentage amount of support in addition to a
specific dollar amount and enter such other orders as may be necessary to determine and enforce, on a timely basis, the applicable
support ordered.
(6) If (i) the non-custodial parent was properly served with a request for discovery of financial information relating to the noncustodial parent's ability to provide child support, (ii) the non-custodial parent failed to comply with the request, despite having been
ordered to do so by the court, and (iii) the non-custodial parent is not present at the hearing to determine support despite having
received proper notice, then any relevant financial information concerning the non-custodial parent's ability to provide child support
that was obtained pursuant to subpoena and proper notice shall be admitted into evidence without the need to establish any further
foundation for its admission.
(a-5) In an action to enforce an order for support based on the respondent's failure to make support payments as required by
the order, notice of proceedings to hold the respondent in contempt for that failure may be served on the respondent by personal
service or by regular mail addressed to the respondent's last known address. The respondent's last known address may be determined
from records of the clerk of the court, from the Federal Case Registry of Child Support Orders, or by any other reasonable means.
(b) Failure of either parent to comply with an order to pay support shall be punishable as in other cases of contempt. In addition to
other penalties provided by law the Court may, after finding the parent guilty of contempt, order that the parent be:
(1) placed on probation with such conditions of probation as the Court deems advisable;
(2) sentenced to periodic imprisonment for a period not to exceed 6 months; provided, however, that the Court may permit the parent
to be released for periods of time during the day or night to:
(A) work; or
(B) conduct a business or other self-employed occupation.
The Court may further order any part or all of the earnings of a parent during a sentence of periodic imprisonment paid to the Clerk of
the Circuit Court or to the parent having custody or to the guardian having custody of the children of the sentenced parent for the
support of said children until further order of the Court.
If there is a unity of interest and ownership sufficient to render no financial separation between a non-custodial parent and another
person or persons or business entity, the court may pierce the ownership veil of the person, persons, or business entity to discover
assets of the non-custodial parent held in the name of that person, those persons, or that business entity. The following circumstances
are sufficient to authorize a court to order discovery of the assets of a person, persons, or business entity and to compel the application
of any discovered assets toward payment on the judgment for support:
(1) the non-custodial parent and the person, persons, or business entity maintain records together.
(2) the non-custodial parent and the person, persons, or business entity fail to maintain an arms length relationship between themselves
with regard to any assets.
(3) the non-custodial parent transfers assets to the person, persons, or business entity with the intent to perpetrate a fraud on the
custodial parent.
With respect to assets which are real property, no order entered under this paragraph shall affect the rights of bona fide purchasers,
mortgagees, judgment creditors, or other lien holders who acquire their interests in the property prior to the time a notice of lis
pendens pursuant to the Code of Civil Procedure [FN1] or a copy of the order is placed of record in the office of the recorder of deeds
for the county in which the real property is located.
The court may also order in cases where the parent is 90 days or more delinquent in payment of support or has been adjudicated in
arrears in an amount equal to 90 days obligation or more, that the parent's Illinois driving privileges be suspended until the court
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determines that the parent is in compliance with the order of support. The court may also order that the parent be issued a family
financial responsibility driving permit that would allow limited driving privileges for employment and medical purposes in accordance
with Section 7-702.1 of the Illinois Vehicle Code. [FN2] The clerk of the circuit court shall certify the order suspending the driving
privileges of the parent or granting the issuance of a family financial responsibility driving permit to the Secretary of State on forms
prescribed by the Secretary. Upon receipt of the authenticated documents, the Secretary of State shall suspend the parent's driving
privileges until further order of the court and shall, if ordered by the court, subject to the provisions of Section 7-702.1 of the Illinois
Vehicle Code, issue a family financial responsibility driving permit to the parent.
In addition to the penalties or punishment that may be imposed under this Section, any person whose conduct constitutes a violation of
Section 15 of the Non-Support Punishment Act [FN3] may be prosecuted under that Act, and a person convicted under that Act may
be sentenced in accordance with that Act. The sentence may include but need not be limited to a requirement that the person perform
community service under Section 50 of that Act or participate in a work alternative program under Section 50 of that Act. A person
may not be required to participate in a work alternative program under Section 50 of that Act if the person is currently participating in
a work program pursuant to Section 505.1 of this Act.
A support obligation, or any portion of a support obligation, which becomes due and remains unpaid as of the end of each month,
excluding the child support that was due for that month to the extent that it was not paid in that month, shall accrue simple interest as
set forth in Section 12-109 of the Code of Civil Procedure. An order for support entered or modified on or after January 1, 2006 shall
contain a statement that a support obligation required under the order, or any portion of a support obligation required under the order,
that becomes due and remains unpaid as of the end of each month, excluding the child support that was due for that month to the
extent that it was not paid in that month, shall accrue simple interest as set forth in Section 12-109 of the Code of Civil Procedure.
Failure to include the statement in the order for support does not affect the validity of the order or the accrual of interest as provided in
this Section.
(c) A one-time charge of 20% is imposable upon the amount of past-due child support owed on July 1, 1988 which has accrued under
a support order entered by the court. The charge shall be imposed in accordance with the provisions of Section 10-21 of the Illinois
Public Aid Code [FN4] and shall be enforced by the court upon petition.
(d) Any new or existing support order entered by the court under this Section shall be deemed to be a series of judgments against the
person obligated to pay support thereunder, each such judgment to be in the amount of each payment or installment of support and
each such judgment to be deemed entered as of the date the corresponding payment or installment becomes due under the terms of the
support order. Each such judgment shall have the full force, effect and attributes of any other judgment of this State, including the
ability to be enforced. A lien arises by operation of law against the real and personal property of the non-custodial parent for each
installment of overdue support owed by the non-custodial parent.
(e) When child support is to be paid through the clerk of the court in a county of 1,000,000 inhabitants or less, the order shall direct
the obligor to pay to the clerk, in addition to the child support payments, all fees imposed by the county board under paragraph (3) of
subsection (u) of Section 27.1 of the Clerks of Courts Act. [FN5] Unless paid in cash or pursuant to an order for withholding, the
payment of the fee shall be by a separate instrument from the support payment and shall be made to the order of the Clerk.
(f) All orders for support, when entered or modified, shall include a provision requiring the obligor to notify the court and, in cases in
which a party is receiving child and spouse services under Article X of the Illinois Public Aid Code, [FN6] the Illinois Department of
Public Aid, within 7 days, (i) of the name and address of any new employer of the obligor, (ii) whether the obligor has access to health
insurance coverage through the employer or other group coverage and, if so, the policy name and number and the names of persons
covered under the policy, and (iii) of any new residential or mailing address or telephone number of the non-custodial parent. In any
subsequent action to enforce a support order, upon a sufficient showing that a diligent effort has been made to ascertain the location of
the non-custodial parent, service of process or provision of notice necessary in the case may be made at the last known address of the
non-custodial parent in any manner expressly provided by the Code of Civil Procedure or this Act, which service shall be sufficient for
purposes of due process.
(g) An order for support shall include a date on which the current support obligation terminates. The termination date shall be no
earlier than the date on which the child covered by the order will attain the age of 18. However, if the child will not graduate from
high school until after attaining the age of 18, then the termination date shall be no earlier than the earlier of the date on which the
child's high school graduation will occur or the date on which the child will attain the age of 19. The order for support shall state that
the termination date does not apply to any arrearage that may remain unpaid on that date. Nothing in this subsection shall be construed
to prevent the court from modifying the order or terminating the order in the event the child is otherwise emancipated.
(g-5) If there is an unpaid arrearage or delinquency (as those terms are defined in the Income Withholding for Support Act) equal to at
least one month's support obligation on the termination date stated in the order for support or, if there is no termination date stated in
the order, on the date the child attains the age of majority or is otherwise emancipated, the periodic amount required to be paid for
current support of that child immediately prior to that date shall automatically continue to be an obligation, not as current support but
as periodic payment toward satisfaction of the unpaid arrearage or delinquency. That periodic payment shall be in addition to any
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periodic payment previously required for satisfaction of the arrearage or delinquency. The total periodic amount to be paid toward
satisfaction of the arrearage or delinquency may be enforced and collected by any method provided by law for enforcement and
collection of child support, including but not limited to income withholding under the Income Withholding for Support Act. Each
order for support entered or modified on or after the effective date of this amendatory Act of the 93rd General Assembly must contain
a statement notifying the parties of the requirements of this subsection. Failure to include the statement in the order for support does
not affect the validity of the order or the operation of the provisions of this subsection with regard to the order. This subsection shall
not be construed to prevent or affect the establishment or modification of an order for support of a minor child or the establishment or
modification of an order for support of a non-minor child or educational expenses under Section 513 of this Act.
(h) An order entered under this Section shall include a provision requiring the obligor to report to the obligee and to the clerk of court
within 10 days each time the obligor obtains new employment, and each time the obligor's employment is terminated for any reason.
The report shall be in writing and shall, in the case of new employment, include the name and address of the new employer. Failure to
report new employment or the termination of current employment, if coupled with nonpayment of support for a period in excess of 60
days, is indirect criminal contempt. For any obligor arrested for failure to report new employment bond shall be set in the amount of
the child support that should have been paid during the period of unreported employment. An order entered under this Section shall
also include a provision requiring the obligor and obligee parents to advise each other of a change in residence within 5 days of the
change except when the court finds that the physical, mental, or emotional health of a party or that of a child, or both, would be
seriously endangered by disclosure of the party's address.
(i) The court does not lose the powers of contempt, driver's license suspension, or other child support enforcement mechanisms,
including, but not limited to, criminal prosecution as set forth in this Act, upon the emancipation of the minor child or children.
Dept. Human Resources v. Sweat (Ga. 2003): Years after Pops. Someone challenging the guidelines saying
they’re unconstitutional
Note 9:
Note 3: Doesn’t infringe on the rights of a person who is a member of a suspect class
Note 7?: Level of child support paid is always subject to court approval
Support agreements (p.874): The parties can agree to it, but it has to be approved by the court. It has to
be registered/ reported to the court to prevent problems
Blisset v. Blisset (Ill. 1988): People were in court, and some issue about overdue child support. States Attorney
Office is trying to enforce child support. Also a problem with visitation. One of the parents proposes that
visitation rights be given up in exchange for giving up child support. Agreement to release support obligation in
exchange for surrender of visitation rights was unenforceable. Still cited by the courts. Man argued that the wife
should be equitably estopped from requesting child support, but this didn't apply because the man didn't
"reasonably" rely on the agreement because the state's attorney told them they couldn't make such an agreement
and they did it anyway
IRMO Jungkans (Ill. App. 2006) (page 262A): Similar to above. The parties have some sort of agreement
between them, unapproved by the court.
Note 2: Equittable estoppel exists where a party by his own statements or conduct induces another party
to REASONABLY rely on statements/ actions to the detriment of the other party.
The parents decided that the father could stop paying half of what he was paying because one of the
children began to live with him. The mother then sought to get the full amount of child support back. Even
though the agreement was unenforceable because there was no court approval, but the wife was estopped from
getting the rest of the money
Riggins v. (Va. 2002): Some football player
High Income Cases (p.873): Courts vary on what to do when one parent's income exceeds the highest figure
listed in the guidelines.
750 ILCS 5/503(g) The court if necessary to protect and promote the best interests of the children may set aside
a portion of the jointly or separately held estates of the parties in a separate fund or trust for the support,
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maintenance, education, and general welfare of any minor, dependent, or incompetent child of the parties. In
making a determination under this subsection, the court may consider, among other things, the conviction of a
party of any of the offenses set forth in Section 12-3.3, 12-4, 12-4.1, 12-4. 2, 12-4.3, 12-13, 12-14, 12- 14.1, 1215, or 12-16 of the Criminal Code of 1961 [FN3] if the victim is a child of one or both of the parties, and there
is a need for, and cost of, care, healing and counseling for the child who is the victim of the crime.
 Scotty Pippin set aside a trust fund so that if he should ever stop making so much money playing
basketball, that his child would be taken care of by the trust fund for life.
Downing v. Downing (Ky. App. 2001): While to some degree children should be able to enjoy each parents
standard of living, but no child needs to get more than 3 ponies! No child needs millions of dollars to survive
Stepparent income (p. 872): Courts generally refuse to deviate from the guidelines of support legislation based
on the income of a stepparent who is not legally obligated to support a child.
However some courts get around this by looking at the need of the custodial parent in taking care of
their child
**You cannot ask what the child support is being used for
However, when trying to determine if there should be deviations from the guideline, there has to be a
basis for doing so
750 ILCS 5/505 (a) (2) (e)
(2) The above guidelines shall be applied in each case unless the court makes a finding that application of the
guidelines would be inappropriate, after considering the best interests of the child in light of evidence including
but not limited to one or more of the following relevant factors:
(e) the financial resources and needs of the non-custodial parent.
If the court deviates from the guidelines, the court's finding shall state the amount of support that would have
been required under the guidelines, if determinable. The court shall include the reason or reasons for the
variance from the guidelines.
IRMO Rogers (Ill. 2004)- Former wife sough modification of former husband's child support obligation.
Former husband appealed. The Supreme Court of IL held that (1) gifts former husband receive each year from
his parents constituted "income" for purposes of determining his child support obligation under Illinois
Marriage and Dissolution of Marriage Act and (2) if a parent has received payments that would otherwise
qualify as income, nothing in the law permits those payments to be excluded from consideration as income
merely because like payments might not be forthcoming in the future.
Barnes v. Matzner (S.D. 2003): Mother brought motion to retroactively modify foreign child support order
which was previously registered and confirmed in the state. The supreme court of South Sakota held that (1)
state had subject matter jurisdiction and (2) res judicata barred award of arrears or retroactive modification; and
(3) father was entitled to partial attorney's fees
South Dakota has subject matter jurisdiction to the mother's request for modification of OH child
support orders irrespective of whether request was retrospective f or prospective, where, at time of registration
of orders in state, father was resident of South Dakota and mother and child were residents of Kentucky, and
there was no evidence that state was divested of jurisdiction
MODIFICATION
IRMO Little, Supreme Court of AZ, En Banc, 1999 … p. 886
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ISSUE: What standard courts should apply in determining whether a non-custodial parent's voluntary
decision to leave his or her employment to become a full-time student constitutes a sufficient change in
circumstances to warrant a downward modification of the parent's child support obligation?
FACTS: Parties divorced in 1995, husband- Billy Little- was to pay $1,186/ month for the support of
two young children. August 1996 Billy resigned his commission in the airforce that was paying him
$48k/ year plus benefits and enrolled as a full time student at the Arizona State University College of
Law
Billy petitioned the court to reduce his child support obligation to $239/ month.
PH:
o Trial court concluded that Bill failed to prove a substantial an continuing change or
circumstances in accordance with AZ revised statutes because h voluntarily left his job to further
his own ambition, he failed to consider the needs of his children, and that to reduce his child
support would be to his children's immediate detriment and their previously established needs.
The trial Court nonetheless reduced the child support payments to $972/month because the wife,
Lisa got a better paying job
o Court of Appeals: Applied a good faith test to determine whether Billy acted reasonably in
leaving his employment and found that the trial court abused its discretion
HOLDING: Vacated the opinion of the court of appeals and affirmed the trial court's decision. A court
should not rely on a good faith test, but should instead balance a number of factors to determine whether
to modify a child support order to reflect a substantial and continuing change of circumstances.
o Adopts an INTERMEDIATE BALANCING TEST that requires the trial court to evaluate
consistent with the Arizona Revised Statutes including, but not limited to:
 Whether the change in employment puts the child in peril
 Reasonableness of terminating employment (considering current level of education and
capacity to find suitable work in the marketplace)
 Whether additional training is likely to increase earning potential
 The length of the parent's proposed educational program
 Whether the parent is able to finance the child support obligation while in school through
student loans or part time employment
 Whether the parents decision to forego employment and return to school was made in
good faith
o UNDER THIS TEST: the requested reduction would have been substantial and such reduction
would be to the child's immediate detriment and to previously established needs. Would place
the family well below the poverty level. Man already has BA and MBA, upon leaving the air
force Billy didn't even attempt to obtain suitable employment, Billy is able to finance his law
school education and most of his child support through student loans, Billy can get part time
employment
o Court must determine the best interests of the child, not the convenience or personal preference
of a parent, so trial courts retain discretion (rejects Nelson v. Nelson)
o Good Faith Test: Rejected: Good faith test- basically to determine that decision to go back to
school isn't to purposefully avoid child support payments
o Strict Rule Test: Doesn't look at the actual income level, but only earning capacity
o National trend favors strictly enforcing child support obligations
If A child is 14 living with mother, and father paying child support, but father decides he wants to go to med
school, this would be detrimental to the child, because when the father ultimately becomes a doctor, the child
will no longer be a minor and the father will not owe the child anything.
750 ILCS § 510. Modification and termination of provisions for maintenance, support, educational
expenses, and property disposition.
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(a) Except as otherwise provided in paragraph (f) of Section 502 and in subsection (b), clause (3) of Section
505.2, the provisions of any judgment respecting maintenance or support may be modified only as to
installments accruing subsequent to due notice by the moving party of the filing of the motion for modification.
An order for child support may be modified as follows:
(1) upon a showing of a substantial change in circumstances; and
(2) without the necessity of showing a substantial change in circumstances, as follows:
(A) upon a showing of an inconsistency of at least 20%, but no less than $10 per month, between the amount of
the existing order and the amount of child support that results from application of the guidelines specified in
Section 505 of this Act unless the inconsistency is due to the fact that the amount of the existing order resulted
from a deviation from the guideline amount and there has not been a change in the circumstances that resulted
in that deviation; or
(B) Upon a showing of a need to provide for the health care needs of the child under the order through health
insurance or other means. In no event shall the eligibility for or receipt of medical assistance be considered to
meet the need to provide for the child's health care needs.
The provisions of subparagraph (a)(2)(A) shall apply only in cases in which a party is receiving child support
enforcement services from the Illinois Department of Public Aid under Article X of the Illinois Public Aid
Code, [FN1] and only when at least 36 months have elapsed since the order for child support was entered or last
modified.
(a-5) An order for maintenance may be modified or terminated only upon a showing of a substantial change in
circumstances. In all such proceedings, as well as in proceedings in which maintenance is being reviewed, the
court shall consider the applicable factors set forth in subsection (a) of Section 504 and the following factors:
(1) any change in the employment status of either party and whether the change has been made in good faith;
(2) the efforts, if any, made by the party receiving maintenance to become self-supporting, and the
reasonableness of the efforts where they are appropriate;
(3) any impairment of the present and future earning capacity of either party;
(4) the tax consequences of the maintenance payments upon the respective economic circumstances of the
parties;
(5) the duration of the maintenance payments previously paid (and remaining to be paid) relative to the length
of the marriage;
(6) the property, including retirement benefits, awarded to each party under the judgment of dissolution of
marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage and the present
status of the property;
(7) the increase or decrease in each party's income since the prior judgment or order from which a review,
modification, or termination is being sought;
(8) the property acquired and currently owned by each party after the entry of the judgment of dissolution of
marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage; and
(9) any other factor that the court expressly finds to be just and equitable.
(b) The provisions as to property disposition may not be revoked or modified, unless the court finds the
existence of conditions that justify the reopening of a judgment under the laws of this State.
(c) Unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise
approved by the court, the obligation to pay future maintenance is terminated upon the death of either party, or
the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another
person on a resident, continuing conjugal basis.
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(d) Unless otherwise provided in this Act, or as agreed in writing or expressly provided in the judgment,
provisions for the support of a child are terminated by emancipation of the child, or if the child has attained the
age of 18 and is still attending high school, provisions for the support of the child are terminated upon the date
that the child graduates from high school or the date the child attains the age of 19, whichever is earlier, but not
by the death of a parent obligated to support or educate the child. An existing obligation to pay for support or
educational expenses, or both, is not terminated by the death of a parent. When a parent obligated to pay support
or educational expenses, or both, dies, the amount of support or educational expenses, or both, may be enforced,
modified, revoked or commuted to a lump sum payment, as equity may require, and that determination may be
provided for at the time of the dissolution of the marriage or thereafter.
(e) The right to petition for support or educational expenses, or both, under Sections 505 and 513 is not
extinguished by the death of a parent. Upon a petition filed before or after a parent's death, the court may award
sums of money out of the decedent's estate for the child's support or educational expenses, or both, as equity
may require. The time within which a claim may be filed against the estate of a decedent under Sections 505
and 513 and subsection (d) and this subsection shall be governed by the provisions of the Probate Act of 1975,
[FN2] as a barrable, noncontingent claim.
(f) A petition to modify or terminate child support, custody, or visitation shall not delay any child support
enforcement litigation or supplementary proceeding on behalf of the obligee, including, but not limited to, a
petition for a rule to show cause, for non-wage garnishment, or for a restraining order.
IRMO Webber (Ill. App. 1989): ILLINOIS= GOOD FAITH TEST, but in determining this APPLIES LITTLE
FACTORS. Test for determining if change in employment was made in good faith is whether change was
prompted by desire to evade financial responsibility for supporting children or to otherwise jeopardize their
interests, for purposes of determining whether change in employment constitutes substantial change in
circumstances justifying reduction I child support obligation by court.
Putz v. Putz (Minn. 2002): MN had a statute that says if a person returns to school they are not considered
"voluntarily unemployed." although a child support obligor who returns to school is free to argue that he or she
is not voluntarily unemployed, such a finding is warranted only if the obligor shows that the unemployment: (1)
is temporary and will ultimately lead to an increase in come; or (2) represents a bona fide career change that
outweighs the adverse effect of that parent's diminished income on the child. (Court looks at balancing factorsearning potential, outweighs adverse effects of diminished income, etc). There must be some sort of evidence of
increase in income.
Support and Visitation (750 ILCS 5/509) (p. 921)
 You can't say "you don't have to pay child support if you give up visitation
 Independence of provisions of judgment or temporary order
 § 509. Independence of provisions of judgment or temporary order. If a party fails to comply with a
provision of a judgment, order or injunction, the obligation of the other party to make payments for
support or maintenance or to permit visitation is not suspended; but he may move the court to grant an
appropriate order.
Incarceration (p. 892): Dec. 2004/ Question 2 of that exam
Some courts take the view that incarceration is involuntarily unemployment and an appropriate basis for
modification. Others hold that incarceration is not a sufficient basis for modification of support, but it is a factor
that may be taken into account in the decision whether to modify a child support obligation.
Staffon v. Staffon (Ga. 2003): Where natural and foreseeable consequence of voluntary conduct place child
support obligor in position where he is unable to earn an income, downward modification is not warranted
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IRMO Hari (ILLINOIS App. 2004): Wife petitioned for divorce, seeking custody and child support. The
Appellate court held that (1) husband's incarceration for minimum of 73 years and ineligibility for work release
did not automatically relieve him of child support obligation. (2) trial court had discretion to set aside husband's
nonmarital property to secure child support; and (3) statute providing that child support to be paid from net
income did not preclude consideration of all assets to secure child support obligation. This was basically done
as per 503(g).
ILLINOIS- incarceration doesn't automatically reduce or end child support. Court looks at amount of
time in prison, sometimes support will accrue.
750 ILCS 5/503(g) The court if necessary to protect and promote the best interests of the children may set aside
a portion of the jointly or separately held estates of the parties in a separate fund or trust for the support,
maintenance, education, and general welfare of any minor, dependent, or incompetent child of the parties. In
making a determination under this subsection, the court may consider, among other things, the conviction of a
party of any of the offenses set forth in Section 12-3.3, 12-4, 12-4.1, 12-4. 2, 12-4.3, 12-13, 12-14, 12- 14.1, 1215, or 12-16 of the Criminal Code of 1961 [FN3] if the victim is a child of one or both of the parties, and there
is a need for, and cost of, care, healing and counseling for the child who is the victim of the crime.
Emancipation (p. 893): A parent's legal obligation to support his or her child usually ends when the child
reaches the age of majority or is otherwise emancipated. Emancipation may occur if the child marries, enlists in
the military, or leaves home and becomes self supporting. Courts may find however, that emancipation has not
occurred for child support purposes in these situations.
IRMO Walters (Ill. App. 1992)- in ILLINOIS 5/510 (b) unless otherwise provided in this act or agreed in
writing or provided in the decree, child support is terminated by emancipation, but does not cease by the
death of the parent collecting. Young lady was living with her mom and going to college. Dad was paying
child support. On some weekend the daughter went and got married. The mother found out about it, the
daughter moved back in with the mother and the mother had the marriage annulled. The father argues that
Harris is controlling and once the daughter was emancipated the obligation to end child support ceases.
Emancipation: reaches age of majority, marries, or enters the armed forces
NON-SUPPORT PUNISHMENT ACT (750 ILCS 16/1)
If you can prove the person is behind in child support, but is able to pay then it’s a Class A
misdemeanor. If someone tries to leave the jurisdiction with intent to evade child support then it is a Class 4
Felony.
DEADBEAT PARENT PUNISHMENT ACT (18 U.S.C. 228(a))
(a) Offense.--Any person who-(1) willfully fails to pay a support obligation with respect to a child who resides in another State, if such
obligation has remained unpaid for a period longer than 1 year, or is greater than $5,000;
(2) travels in interstate or foreign commerce with the intent to evade a support obligation, if such
obligation has remained unpaid for a period longer than 1 year, or is greater than $5,000; or
(3) willfully fails to pay a support obligation with respect to a child who resides in another State, if such
obligation has remained unpaid for a period longer than 2 years, or is greater than $10,000; shall be punished as
provided in subsection (c).
(b) Presumption.--The existence of a support obligation that was in effect for the time period charged in the
indictment or information creates a rebuttable presumption that the obligor has the ability to pay the support
obligation for that time period.
(c) Punishment.--The punishment for an offense under this section is-(1) in the case of a first offense under subsection (a)(1), a fine under this title, imprisonment for not
more than 6 months, or both; and
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(2) in the case of an offense under paragraph (2) or (3) of subsection (a), or a second or subsequent
offense under subsection (a)(1), a fine under this title, imprisonment for not more than 2 years, or both.
(d) Mandatory restitution.--Upon a conviction under this section, the court shall order restitution under section
3663A in an amount equal to the total unpaid support obligation as it exists at the time of sentencing.
(e) Venue.--With respect to an offense under this section, an action may be inquired of and prosecuted in a
district court of the United States for—
(1) the district in which the child who is the subject of the support obligation involved resided during a
period during which a person described in subsection (a) (referred to in this subsection as an "obliger") failed to
meet that support obligation;
(2) the district in which the obliger resided during a period described in paragraph (1); or
(3) any other district with jurisdiction otherwise provided for by law.
(f) Definitions.--As used in this section-(1) the term "Indian tribe" has the meaning given that term in section 102 of the Federally Recognized
Indian Tribe List Act of 1994 (25 U.S.C. 479a);
(2) the term "State" includes any State of the United States, the District of Columbia, and any
commonwealth, territory, or possession of the United States; and
(3) the term "support obligation" means any amount determined under a court order or an order of an
administrative process pursuant to the law of a State or of an Indian tribe to be due from a person for the support
and maintenance of a child or of a child and the parent with whom the child is living
**Challenges to the constitutionality of this act have routinely been rejected
U.S. v. Klinzing (7th Cir. 2003): Deadbeat Parents Punishment Act punishing the willful nonpayment of past due
child support obligations owing to children residing in different state than the obligor parent, did not violate the
Commerce Clause; interstate child support obligation was a thing in interstate commerce that Congress could
properly regulate, and obligor parents who failed to pay court-ordered interstate child support obligation was
not lawfully abstaining from participating in interstate commerce.
COLLEGE / DISABLED CHILD
LeClair v. LeClair, SC of NH (1993), 137 NH 213
 Court affirmed the decision to make a father contribute to his adult son's college education which would
be $2,000/ academic year.
 The state has the dual legitimate interests of promoting higher education for its citizens, and of
extending protection to children of divorce to ensure that they are not deprived of opportunities they
otherwise would have received had their parents not divorced
 New Hampshire laws were rationally related to protecting these interests, and to do so in a a manner that
is neither arbitrary nor without reasonable justification (which allow the superior court, in its sounds
discretion, to award reasonable college expenses of adult children under the proper circumstances.)
 It is not mandated that the parent has to pay it, the court uses its discretion to determine whether the noncustodial parent should provide support for higher education
 In 2004 the NH statute was amended to eliminate support orders for educational expenses beyond high
school
**Only 16 states that allow, by statute, of college expenses, including ILLINOIS
750 § 513. Support for Non-minor Children and Educational Expenses.
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(a) The court may award sums of money out of the property and income of either or both parties or the estate of
a deceased parent, as equity may require, for the support of the child or children of the parties who have attained
majority in the following instances:
(1) When the child is mentally or physically disabled and not otherwise emancipated, an application for
support may be made before or after the child has attained majority.
(2) The court may also make provision for the educational expenses of the child or children of the
parties, whether of minor or majority age, and an application for educational expenses may be made before or
after the child has attained majority, or after the death of either parent. The authority under this Section to make
provision for educational expenses extends not only to periods of college education or professional or other
training after graduation from high school, but also to any period during which the child of the parties is still
attending high school, even though he or she attained the age of 19. The educational expenses may include, but
shall not be limited to, room, board, dues, tuition, transportation, books, fees, registration and application costs,
medical expenses including medical insurance, dental expenses, and living expenses during the school year and
periods of recess, which sums may be ordered payable to the child, to either parent, or to the educational
institution, directly or through a special account or trust created for that purpose, as the court sees fit.
If educational expenses are ordered payable, each parent and the child shall sign any consents necessary for the
educational institution to provide the supporting parent with access to the child's academic transcripts, records,
and grade reports. The consents shall not apply to any non-academic records. Failure to execute the required
consent may be a basis for a modification or termination of any order entered under this Section.
The authority under this Section to make provision for educational expenses, except where the child is
mentally or physically disabled and not otherwise emancipated, terminates when the child receives a
baccalaureate degree.
(b) In making awards under paragraph (1) or (2) of subsection (a), or pursuant to a petition or motion to
decrease, modify, or terminate any such award, the court shall consider all relevant factors that appear
reasonable and necessary, including:
(1) The financial resources of both parents.
(2) The standard of living the child would have enjoyed had the marriage not been dissolved.
(3) The financial resources of the child.
(4) The child's academic performance.
Spending decisions Child support payments are made for the benefit of the child even though they are payable
to the custodial parent. Although support payers are often suspicious about how child support funds are spent by
the custodial parent, courts are generally unwilling to interfere with the custodial parent's spending decisions.
However, CO allows this.
Constitutional Issues (p. 901)
Curtis v. Kline (Pa. 1995): they had an earlier case where the SC of PA found that the law that allowed for the
payment of college expenses was unconstitutional, so the legislature then came back and changed their law
trying to abide by common law and enacted a new law. In this case, the court declares the new law
unconstitutional. Court didn't agree with LeClaire, and they thought there was an issue of Equal Protection
where the children in divorce cases and the children in in-tact marriages were being treated differently and not
getting the same benefits.
In re Crocker (Ore. 2001): Statute permitting court to order divorced parent to provide support for his or her
children between 18 and 21 years of age attending school is limited to parents who are not cohabitating
Statue permitting court to order divorced parent to provide support for his or her child between 18 and
21 years of age attending school, which is limited to parents who are not cohabitating, does not violate state
equal privileges doctrine or federal equal protection clause.
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Factors (p. 901): The factors the court evaluates include whether the parent, if still living with the child, would
have contributed toward the costs of the requested higher education; the effect of the background, values and
goals of the parent on the reasonableness of the child's expectation for high education; the amount sought and
both parents' ability to pay; the child's commitment to and aptitude for the requested education; other financial
resources including availability of financial aid; and the child's relationship to the paying parent, "including
mutual affection and shared goals as well as responsiveness to parental advice and guidance.
Should parents require their children to go to a public school versus a private institution for college?
ILLINOIS: no, it all depends on the particular circumstances
Can an amount of child support ordered be more ?
ILLINOIS: you can go above the child support guidelines here; in other states this is an absolute no.
Gibb v. Triezenberg (Ill. App. 1989)- Mother brought action to compel non-custodial father to pay college
expenses for a child who has refused to continue their relationship. Court said that you could consider the bad
relationship in determining whether to compel the father to pay supprt. Not taking it into account was not
reversible error
Ignored the bad relationship between the child and father and said they wanted the dad to pay enough so
that the son didn't have to take out any loans.
IRMO Drysch (Ill. App. 2000)- The trial court should not have considered the poor relationship with the child
when determining college education expenses
Poor relationship does not eliminate the parent/ child bond or the parent's continuing duty to provide
support for his children.
Norris v. Pethe (Ind. App. 2005)- Bad relationship between child and the father. Note 18: Daughter's
repudiation of her relationship of with her father, continued uninterrupted, released the father from providing
for college expenses. She repudiated his attempts to have a relationship. They make the point that it was her
actions that occurred after she reached majority. If the child hasn't reached majority then its not so much of an
issue
Hastings v. Hastings (Fla. App. 2003)- 29 years after the child reached majority. The court held that it was
appropriate for the child to seek support. Child was disabled throughout childhood, but got no support from
father. The court said it was appropriate for the child himself, who is not in his 50s, to bring such action.
ILLINOIS: Does not specifically give standing for a child to give action on his or her own
Orr v. Orr (Ill. App. 1992): Adult child of divorced parents has standing to enforce educational provisions on a
divorce decree on the standing that he or she is a third party beneficiary.
SUPPORT ENFORCEMENT
Welsher v. Rager, Court of Appeals of NC, 127 N.C.App. 521 (1997)
 Defenses
o The issuing tribunal lacked jurisdiction
o The order was fraudulently obtained
o The order has been vacated, suspended or modified
o The issuing tribunal has been stayed pending appeal
o The remedy sought is not available in this state
o
payment has been made in full or in part
o enforcement is precluded by the statute of limitations
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Full Faith and Credit Child Support Act
 Mirrors UIFSA
 This is the weight of federal authority to enforce the state child support orders.
Parental Kidnapping Prevention Act
 Physical custody: means actual possession and control of a child
 A child custody determination made by a court of a State is consistent with the provisions of this
section only if-- (1) such court has jurisdiction under the law of such State; and (2) one of the following
conditions is met:
o A State is (i) the home State of the child on the date or the commencement of the proceeding or
(ii) has been the child's Home State within 6 months before he date of the commencement of the
proceeding and the child is absent from such State because of his removal or retention by a
cotestant or for other ereasons and a contestant continues to live in such state
UCCJA
Uniform Child Custody and
Jurisdiction Act (1967)
PKPA pg 1130
Parental Kidnapping Prevention
Act (1980) (2004)
Purpose: initial determinations of Purpose: to modify or enforce an
custoday, modifications, and
order from another state : only
enforcement of orders
comes into play when there are
multiple orders
Jurisdiction:
Jurisdiction:
1) home state of child (when 2
1) home state (when 2 types)
types)
2) IF no home state then best
OR
interest etc
2) best interest of child for other 3) Emergency
state to have jurisdiction because 4) Any other state
there are (a) significant contacts
and (b) substantial evidence
3) Emergency; OR
4) if none of the other factors can
prove jurisdiction then any other
state where the child is, is good
enough
"home state" at least 6
consecutive months prior to suit
being followed
OR
If less than 6 months old, where
the child lived since birth
- temporary absences are
included in the time calculations
(so it doesn't matter if you leave
Home state trumps here.... but if
there is No home state then you
look at the other factors; as
opposed to the UCCJA which
holds all of the different
jurisdiction tests on equal
grounds. Here "home state"
trumps.
UCCJEA pg 1132
Uniform Child Custody Jurisdiction
and Enforcement Act (1997) (IL2004)
Purpose: Initial, modification, or
enforcement
Jurisdiction:
1) Home state
2) IF no home state, then significant
contacts and substantial evidence
3) No other state
**Emergency is a separate section
A court of this state has jurisdiction to
make an initial custody determination
only if A court of another State does
not have jurisdiction under paragraph
(1) or a court of the home State of the
child has declined to exercise
jurisdiction on the ground that this
State is the more appropriate forum
under Section 207 or 208
(inconvenient forum or jurisdiction
declined by reason of conduct)
* If judge in state A calls judge in
state B to figure out jurisdiction the
parties have to be present or
something (at least have knowledge)
See sections 201, 202, 203, 207, 208
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for a week)
See Section C on 1130
Physical custody: means actual
possession and control of a child
Physical custody means the physical
care and supervision of a child
"Home state-" immediately preceding the time involved, or the immediately preceding the filing of the petition
CHILD CUSTODY
In re Brilliant, Court of Appeals of TX (2002), 86 S.W.3d 680 ….. p. 940
 Judge determined that MA is the home state of the child and remains the home state of the child, because
the trip to Texas/ residence there for 40 days was temporary in nature and doesn't count towards being the
home state. All of the child's year of life was in Massachusetts except for the 40 day sojourn to Texas.
Vannatta v. Boulds, ……. p. 951
 Father lived in ND, but mother and child left to Montana. North Dakota made initial order. Mother filed in
Montana court
 PH: Lower court said that even though the child had only been in the new state for a short period of time,
the father had consented to the jurisdiction. Montana Supreme Court looked at PKPA and the UCCJEA
were supposed to stop interstate takings of children and should enforce agreements. Court said they were
not going to overrule jurisdiction of other state unless other state no longer had jurisdiction or no one
remained in that state.
 Holding: Because the father still lived in North Dakota, ND still had jurisdiction and Montana could not
overrule that
 **Parties cannot confer jurisdiction (Different than UIFSA where you can agree on jurisdiction)
UCCJA (p. 939)
UCCJEA (p. 939 / p. 1132)
750 ILCS 35/1
In re D.S. (Ill. 2005)- Mother was expecting her 9th child. The oldest 6 children were taken away from her
through DCFS and placed with other families. There were proceedings to terminate her rights with the 6 kids. 2
youngest living with their father in TN. DCFS is hovering over her, so she decides she is going to get out of IL.
Doctor tells her she needs to go to the hospital because she is going to give birth, Instead she tries to drive to
TN, but only makes it to IN where she has the baby. The Illinois court orders that the child be taken out of
Indiana and returned to IL. Mother argues that IN is the home state. Court said that "live with" does not
apply to the 2 days in Indiana; it is not sufficient.
Home state (p. 948) /
IRMO Richardson (Ill. App. 1993): Mother brought proceeding to enroll CA divorce and child custody
judgment in IL. The court held that (1) Illinois was no entitled to jurisdiction under UCCJA providing that
child's home state has jurisdiction, (2) Illinois did not have jurisdiction under section of UCCJA allowing state
to exercise jurisdiction if it were in the best interest of the child; and (3) IL did not have subject matter
jurisdiction under UCCJA allowing state to exercise jurisdiction if no other state appeared to have jurisdiction
or another state had declined jurisdiction in state's favor
The child living in IL for 11 months was temporary, because the intent of the parents was that the
state be temporary, and therefore the clock never started to run in IL.
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IRMO Schoeffel (Ill. App. 1994): Parents and kids lived in Illinois for six months. Children moved to
NY with mother and lived there for 7 months where the mom then filed for divorce. Court held that whether
state is child's home state under UCCJA is primarily question of time, intent of parties is not controlling
Children were not temporarily absent from Illinois, but permanently left Illinois to live in NY after 6
month stay in IL, for jurisdiction purposes under Uniform Child Welfare Act, where children lived in NY
continuously with exceptions of one week in Florida ion vacation, week in IL, and two weeks in IL while
parents attempted reconciliation. Court doesn't follow Richardson.
**Court does not have to have personal jurisdiction over one parent to have jurisdiction see page 958
May v. Anderson- Fiscal presence of personal jurisdiction is not required to make a custody
determination.
Powell v. Stover (Tex. 2005)- There was a home state but then there was an absence: The mother moved from
TX to TN and had in TN, followed her husband there and established a new bank account, they put down
money on a home they were going to buy; they did lots of things that showed intention to make TN a new home
state however things didn’t work out and she moved back to TX pregnant with her 5 year old. She gives birth to
the second child in TX (both born there), but the 5 year old lived for more than 5 months in TN> Wife files
divorce action.
SC of TX said that since mother moved to TN and lived there over 6 months, established new bank
account, got a home, etc this was not a temporary move and she established a new home state so TN should
hear anything having to do with the 5 year old. TX had jurisdiction over the newborn.
UCCJEA doesn't always mandate the communication between the courts but it does suggest it.
They wanted there to be an inconvenient forum argument
IRMO Wiseman (Ill. App. 2000)- PKPA preempts the UCJA and UCCJEA- Supremacy Clause of the
Constitution
Stoneman v. Drollinger (Mont. 2003)- A finding of domestic violence authorized a court to yield jurisdiction to
another state if the victim could be better protected in the other forum and if the other statutory factors did not
militate against the transfer; the transfer here was more convenient
A finding that intimate partner violence or abuse f a child has occurred or that a party has fled a state to
avoid further violence or abuse, authorizes a court to yield jurisdiction in custody proceedings to another state if
the victim could be better protected in the other forum and if other statutory factors do not militate against
transfer; while domestic violence factor alone is not dispositive under UCCJEA, safety of victims of
domestic violence should be given priority when considering jurisdictional issues under UCCJEA
Washington asks Montana to decline jurisdiction, Montana said no, SC of Montana says that the trial
courts decision was an abuse of discretion and it is apparent that WA is the more convenient place
Ihinger v. Ihinger (Vt. 2003)- In post divorce proceedings husband filed motion to dissolve temporary custody
order giving custody of his minor children to children's maternal grandmother
Children lacked party status to appeal order in post divorce proceeding that dissolved temporary custody
order and returned children from grandmothers temporary custody to their mother's custody, where neither
children's attorney nor guardian ad litem appointed to represent children's best interests sought intervention for
children in the proceeding
****there are situations where the child could ask the court to appoint a lawyer and ask the court to
intervene in the case (this was not done here)
CUSTODY DETERMINATION
Primary Caregiver / Best Interests
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IRMO Kovacs, 121 Wash.2d 795 (WA SC, En Banc, 1993) ….. p. 959
 WA has particular statute with provision that talks about the different factors they use to determine
custody. One of the factors is who is the primary caregiver and the greater responsibility for the
upbringing of the child and this is supposed to be given the greatest weight. Lower court held that mom
should have custody because she is the primary caregiver. The Supreme Court looked at the legislative
history of the act and said that such a presumption of custody should not be given to the primary
caregiver. Even if that factor is given the greatest weight, there should be no presumption
ILLINOIS 750 ILCS 5/602 Best Interest of Child. (in determining custody)
(a) The court shall determine custody in accordance with the best interest of the child. The court shall
consider all relevant factors including:
(1) the wishes of the child's parent or parents as to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other
person who may significantly affect the child's best interest;
(4) the child's adjustment to his home, school and community;
(5) the mental and physical health of all individuals involved;
(6) the physical violence or threat of physical violence by the child's potential custodian, whether
directed against the child or directed against another person;
(7) the occurrence of ongoing or repeated abuse as defined in Section 103 of the Illinois Domestic
Violence Act of 1986, whether directed against the child or directed against another person;
(8) the willingness and ability of each parent to facilitate and encourage a close and continuing
relationship between the other parent and the child; and
(9) whether one of the parents is a sex offender.
In the case of a custody proceeding in which a stepparent has standing under Section 601, it is presumed to be in
the best interest of the minor child that the natural parent have the custody of the minor child unless the
presumption is rebutted by the stepparent.
(b) The court shall not consider conduct of a present or proposed custodian that does not affect his
relationship to the child. (sometimes difficult to interpret)
(c) Unless the court finds the occurrence of ongoing abuse as defined in Section 103 of the Illinois
Domestic Violence Act of 1986, the court shall presume that the maximum involvement and cooperation of
both parents regarding the physical, mental, moral, and emotional well-being of their child is in the best interest
of the child. There shall be no presumption in favor of or against joint custody.
Misconduct (Lifestyles) (p. 970, 987): Courts will look at child abuse in determining custody issues, and
weight it heavily, but when spousal abuse is an issue the court gives it much less weight
Alaska held that it is not permissible, in a bicultural context, to decide a child's custody on the
hypothesis that it is necessary to facilitate the child's adjustment to what is believed to be the dominant culture
Unless the conduct adversely effects the child it will not be taken into account
**Homosexuality is not grounds for modifying custody in the absence of evidence that the environment
damages the child's physical or emotional health
750 ILCS 610 MODIFICATION
(a) Unless by stipulation of the parties or except as provided in subsection (a-5), no motion to modify a
custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the
basis of affidavits that there is reason to believe the child's present environment may endanger seriously his
physical, mental, moral or emotional health.
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(a-5) A motion to modify a custody judgment may be made at any time by a party who has been
informed of the existence of facts requiring notice to be given under Section 609.5.
(b) The court shall not modify a prior custody judgment unless it finds by clear and convincing
evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at
the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his
custodian, or in the case of a joint custody arrangement that a change has occurred in the circumstances of the
child or either or both parties having custody, and that the modification is necessary to serve the best interest of
the child. The existence of facts requiring notice to be given under Section 609.5 of this Act shall be considered
a change in circumstance. In the case of joint custody, if the parties agree to a termination of a joint custody
arrangement, the court shall so terminate the joint custody and make any modification which is in the child's
best interest. The court shall state in its decision specific findings of fact in support of its modification or
termination of joint custody if either parent opposes the modification or termination.
(c) Attorney fees and costs shall be assessed against a party seeking modification if the court finds that
the modification action is vexatious and constitutes harassment.
(d) Notice under this Section shall be given as provided in subsections (c) and (d) of Section 601.
§ 609.5. Notification of remarriage or residency with a sex offender. A parent who intends to marry or
reside with a sex offender, and knows or should know that the person with whom he or she intends to marry or
reside is a sex offender, shall provide reasonable notice to the other parent with whom he or she has a minor
child prior to the marriage or the commencement of the residency.
Nolte v. Nolte (Ill. App. 1993) pg 311: Father was asking for modification of custody because the mother was
living with a guy whom she was not married to. Trial court: Dad Wins, but then the appellate court said that you
have to really show by clear and convincing evidence that the mom living with the man, in itself, adversely
effected the children. The appellate court therefore reversed and remanded
IRMO Martins (Ill. App. 1995)- Father wanted modification because mom was living in a lesbian relationship.
The husband had at one time appeared on Oprah about people who are married to homosexuals and he initially
didn't care. However, now he was in court saying that he did care and it was a healthy relationship. At trial court
Mom won, because there was no clear and convincing evidence. Appellate court reversed and said evidence was
sufficient to show by clear and convincing evidence that there was impact from the mother's lifestyle on the
children. It was the fact that the mother had a series of relationships so there were numerous female roommates
coming in and out of the house. Since there was no stability in her home, the mother's lifestyle was a basis for
modification
Child’s Wishes (p. 970): The UMDA (uniform marriage divorce act) permits judges to interview children in
chambers to ascertain the child's wishes
750 ILCS 5/604 Interviews
(a) The court may interview the child in chambers to ascertain the child's wishes as to his custodian and
as to visitation. Counsel shall be present at the interview unless otherwise agreed upon by the parties. The
court shall cause a court reporter to be present who shall make a complete record of the interview
instantaneously to be part of the record in the case.
(b) The court may seek the advice of professional personnel, whether or not employed by the court on a
regular basis. The advice given shall be in writing and made available by the court to counsel. Counsel may
examine, as a witness, any professional personnel consulted by the court, designated as a court's witness.
*** Even if you aive the lawyers presence you still have to have a court reporter present in chambers
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IRMO Knoche (Ill. App. 2001)- Mom didn't have the lawyer, but the judge wanted to interview child. So the
judge said that the dad's lawyer could be there, but the mom couldn’t be (even though she was acting as her own
lawyer) since parents were not allowed. Mom appealed but the court said the error was harmless, because the
custody still should have been transferred to the father. In the interview the girl stated she preferred living with
the mom, but the court still granted custody to the father.
IRMO Presson (Ill. 1984): Mom wants to change name of child to her new husband's last name. Father asked
for an injunction to enjoin the mother from legally changing the child's last name. Supreme court said that dad
could have some sort of injunction, and evaluated the following factors to determine the best interests
(1) wishes of child, stated reasons for proposed change, child's age and maturity, nature of the family situations,
any misconduct or neglect of the child by the parent opposing the change, where there has been little contact
with the parent
In re Davenport (Neb. 2002)
Howard (Ill. App. 2003): ***in test. Kid was 11 at the time of the divorce and there was joint custody but the
mom had primary physical care. Shortly after the mother remarries and moves out of state, and since then the
father has no contact with the child for 4 years. He sent a letter once or trice a year. The kid has been living with
the parent for 7 years. Mother filed petition for name change for child- mother didn't initillay want this- Since
Presson ILLLINOIS HAS ENACTED A STATUTE
735 ILCS 5/21-101 NAME CHANGE
§ 21-101. Proceedings; parties. If any person who is a resident of this State and has resided in this State
for 6 months desires to change his or her name and to assume another name by which to be afterwards called
and known, the person may file a petition in the circuit court of the county wherein he or she resides praying for
that relief. If it appears to the court that the conditions hereinafter mentioned have been complied with and that
there is no reason why the prayer should not be granted, the court, by an order to be entered of record, may
direct and provide that the name of that person be changed in accordance with the prayer in the petition. The
filing of a petition in accordance with this Section shall be the sole and exclusive means by which any person
committed under the laws of this State to a penal institution may change his or her name and assume another
name. However, any person convicted of a felony, misdemeanor criminal sexual abuse when the victim of the
offense at the time of its commission is under 18 years of age, misdemeanor sexual exploitation of a child,
misdemeanor indecent solicitation of a child, or misdemeanor indecent solicitation of an adult in this State or
any other state who has not been pardoned may not file a petition for a name change until 10 years have passed
since completion and discharge from his or her sentence. A person who is required to register as a sex offender
under the Sex Offender Registration Act [FN1] may not file a petition for a name change until the person is no
longer under a duty to register under that Act. A petitioner may include his or her spouse and adult unmarried
children, with their consent, and his or her minor children where it appears to the court that it is for their best
interest, in the petition and prayer, and the court's order shall then include the spouse and children. Whenever
any minor has resided in the family of any person for the space of 3 years and has been recognized and known
as an adopted child in the family of that person, the application herein provided for may be made by the person
having that minor in his or her family.
An order shall be entered as to a minor only if the court finds by clear and convincing evidence
that the change is necessary to serve the best interest of the child. In determining the best interest of a
minor child under this Section, the court shall consider all relevant factors, including:
(1) The wishes of the child's parents and any person acting as a parent who has physical custody
of the child.
(2) The wishes of the child and the reasons for those wishes. The court may interview the child in
chambers to ascertain the child's wishes with respect to the change of name. Counsel shall be present at
the interview unless otherwise agreed upon by the parties. The court shall cause a court reporter to be
present who shall make a complete record of the interview instantaneously to be part of the record in the
case.
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(3) The interaction and interrelationship of the child with his or her parents or persons acting as
parents who have physical custody of the child, step-parents, siblings, step-siblings, or any other person
who may significantly affect the child's best interest.
(4) The child's adjustment to his or her home, school, and community.
IRMO Romans (Ill. App. 2006)
JOINT CUSTODY
Rodrigue v. Brewer ……. p. 972: Husband and wife married briefly and they split up right before child's birth
and they couldn't agree upon custody or how to religiously raise the child. Child was about 2 when the case was
going on. Experts were introduced. Dad wanted to be responsible for certain decisions and the mother would be
responsible for other decisions. The court granted 4 weeks at a time of custody to each parent at a time, even
though the father would be moving around (professor at different colleges) month to month. Mother would
control religion. Mother appealed the decision of the court but it was upheld.
DISSENT: Equality is not necessarily equity- you don't have to do equal time for joint custody to be
equitable. You have this child caught in the middle of an intense conflict and it would seem that the judge
making it 50/50 that the judge is abdicating his role as the person who should decide what is actually in the best
interest of the child, and instead the court should be weighing the evidence, the testimony of the experts, etc,
and this was not done. There was no evidence of any kind in the record that says that the shared responsibility is
in the best interest of the child. ***Clark thinks the dissent is the more reasonable approach
 Some state favor joint custody, some don't, some are neutral
 ILLINOIS: neutral 750 ILCS 5/602(c)
(c) Unless the court finds the occurrence of ongoing abuse as defined in Section 103 of the Illinois
Domestic Violence Act of 1986, the court shall presume that the maximum involvement and cooperation of
both parents regarding the physical, mental, moral, and emotional well-being of their child is in the best interest
of the child. There shall be no presumption in favor of or against joint custody.
 The court CAN order the parents or impose a plan upon the parents under 602.1, but when that happens
(especially when someone is saying they don't want joint custody) the court will still put one in order, it
will be reversed as against discretion
750 ILCS 5/602.1 Parental powers; joint custody; criteria
(a) The dissolution of marriage, the declaration of invalidity of marriage, the legal separation of the
parents, or the parents living separate and apart shall not diminish parental powers, rights, and responsibilities
except as the court for good reason may determine under the standards of Section 602.
(b) Upon the application of either or both parents, or upon its own motion, the court shall consider an
award of joint custody. Joint custody means custody determined pursuant to a Joint Parenting Agreement or a
Joint Parenting Order. In such cases, the court shall initially request the parents to produce a Joint Parenting
Agreement. Such Agreement shall specify each parent's powers, rights and responsibilities for the personal care
of the child and for major decisions such as education, health care, and religious training. The Agreement shall
further specify a procedure by which proposed changes, disputes and alleged breaches may be mediated or
otherwise resolved and shall provide for a periodic review of its terms by the parents. In producing a Joint
Parenting Agreement, the parents shall be flexible in arriving at resolutions which further the policy of this State
as expressed in Sections 102 and 602. For the purpose of assisting the court in making a determination whether
an award of joint custody is appropriate, the court may order mediation and may direct that an investigation be
conducted pursuant to the provisions of Section 605. If there is a danger to the health or safety of a partner, joint
mediation shall not be required by the court. In the event the parents fail to produce a Joint Parenting
Agreement, the court may enter an appropriate Joint Parenting Order under the standards of Section 602 which
shall specify and contain the same elements as a Joint Parenting Agreement, or it may award sole custody under
the standards of Sections 602, 607, and 608.
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(c) The court may enter an order of joint custody if it determines that joint custody would be in the best
interests of the child, taking into account the following:
(1) the ability of the parents to cooperate effectively and consistently in matters that directly affect the
joint parenting of the child. "Ability of the parents to cooperate" means the parents' capacity to substantially
comply with a Joint Parenting Order. The court shall not consider the inability of the parents to cooperate
effectively and consistently in matters that do not directly affect the joint parenting of the child;
(2) The residential circumstances of each parent; and
(3) all other factors which may be relevant to the best interest of the child.
(d) Nothing within this section shall imply or presume that joint custody shall necessarily mean
equal parenting time. The physical residence of the child in joint custodial situations shall be determined by:
(1) express agreement of the parties; or
(2) order of the court under the standards of this Section.
(e) Notwithstanding any other provision of law, access to records and information pertaining to a child,
including but not limited to medical, dental, child care and school records, shall not be denied to a parent for the
reason that such parent is not the child's custodial parent; however, no parent shall have access to the school
records of a child if the parent is prohibited by an order of protection from inspecting or obtaining such records
pursuant to the Illinois Domestic Violence Act of 1986, as now or hereafter amended.
In Re Rayman (Kan. 2002)
IRMO Deem (Ill. App. 2002)
Parent Education (p. 980)
750 ILCS 5/404.1
INTERFERENCE WITH VISITATION
Renaud v. Renaud ….. p. 988
Husband and wife were married in October 1989, had one son in January 1994. In May 1996 they
separated when the father told the wife he was having an affair with a co-worker and wanted a divorce. The
husband moved out so the mother was living with the three year old son in the marital home. The wife tried to
sever the husband's contact with the child. She wanted him to go a temporary visitation schedule and even said
that the husband sexually abused the child to hinder the father's contact. None of the allegations were
substantiated and they were dismissed.
Court had problems with the mother influencing the son and negatively impacting his relationship with
the father. The court gave the mother custody after she sought counseling to overcome her emotional problems.
Father appealed.
The court held that despite everything the main thing to look at is the interest of the child. Here the court
said that the relationship with the mother was very great, so that
Allegations of (sex) abuse (p. 993)
Counsel for child (p. 994) / 750 ILCS 5/506 /
IRMO Bates (Ill. 2004)- Guardian gives his opinion/ recommendation as to custody, and the mom's lawyer
wanted to cross examine the guardian as to how he came up with his opinion but the IL statute says they're not
subject to cross examination. The Supreme court said that the plain language of the status says he's not subject
to cross examination but deprived the mother of substantive due process, HOWEVER it was still harmless error.
Constitutional deprivation here was constitutional error and the law was rewritten
Case also dealt with parental alienation syndrome. The court accepted the testimony of the
psychologist that it was accepted in the psychological field that parental alienation syndrome exists, but the
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court noted that the trial court made no specific finding as to whether parental alienation is a new or general
syndrome, so thee court says whatever the merits of parental alienation syndrome, the court expressed no
opinion on this but noted that PAS is the subject of legal and psychological criticism and this opinion doesn’t
support or disprove that theory.
Page 994: If you have a child involved, you might have appointed someone either as an attorney for the child or
a guardian ad litem for the child, or it might be someone in ILLINOIS we have the child representative.
There are many states that permit, but do not require, the court to appoint an attorney for the child to
represent the child's best interests
§ 506. REPRESENTATION OF CHILD.
(a) Duties. In any proceedings involving the support, custody, visitation, education, parentage, property
interest, or general welfare of a minor or dependent child, the court may, on its own motion or that of any party,
appoint an attorney to serve in one of the following capacities to address the issues the court delineates:
(1) Attorney. The attorney shall provide independent legal counsel for the child and shall owe the
same duties of undivided loyalty, confidentiality, and competent representation as are due an adult client.
(2) Guardian ad litem. The guardian ad litem shall testify or submit a written report to the
court regarding his or her recommendations in accordance with the best interest of the child. The report shall be
made available to all parties. The guardian ad litem may be called as a witness for purposes of crossexamination regarding the guardian ad litem's report or recommendations. The guardian ad litem shall
investigate the facts of the case and interview the child and the parties.
(3) Child representative. The child representative shall advocate what the child representative
finds to be in the best interests of the child after reviewing the facts and circumstances of the case. The
child representative shall meet with the child and the parties, investigate the facts of the case, and encourage
settlement and the use of alternative forms of dispute resolution. The child representative shall have the same
authority and obligation to participate in the litigation as does an attorney for a party and shall possess all the
powers of investigation as does a guardian ad litem. The child representative shall consider, but not be
bound by, the expressed wishes of the child. A child representative shall have received training in child
advocacy or shall possess such experience as determined to be equivalent to such training by the chief judge of
the circuit where the child representative has been appointed. The child representative shall not disclose
confidential communications made by the child, except as required by law or by the Rules of Professional
Conduct. The child representative shall not render an opinion, recommendation, or report to the court and shall
not be called as a witness, but shall offer evidence-based legal arguments. The child representative shall
disclose the position as to what the child representative intends to advocate in a pre-trial memorandum that shall
be served upon all counsel of record prior to the trial. The position disclosed in the pre-trial memorandum shall
not be considered evidence. The court and the parties may consider the position of the child representative for
purposes of a settlement conference.
(a-3) Additional appointments. During the proceedings the court may appoint an additional attorney to
serve in the capacity described in subdivision (a)(1) or an additional attorney to serve in another of the
capacities described in subdivision (a)(2) or (a)(3) on the court's own motion or that of a party only for good
cause shown and when the reasons for the additional appointment are set forth in specific findings.
(a-5) Appointment considerations. In deciding whether to make an appointment of an attorney for the
minor child, a guardian ad litem, or a child representative, the court shall consider the nature and adequacy of
the evidence to be presented by the parties and the availability of other methods of obtaining information,
including social service organizations and evaluations by mental health professions, as well as resources for
payment.
In no event is this Section intended to or designed to abrogate the decision making power of the trier of
fact. Any appointment made under this Section is not intended to nor should it serve to place any appointed
individual in the role of a surrogate judge.
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*Fees and costs to be shared by the parties: no pro bono representatives
DIFFERENT CONSIDERATIONS FOR CUSTODY MATTERS
 Domestic violence, race, religion (see above)
Domestic Violence (p. 970)- A history of child abuse would weigh significantly, but courts have been less
willing to recognize spousal abuse in custody determinations.
ILLINOIS 750 ILCS 5/602(a)(6)- one of the factors that the legislature considers is the physical
violence or potential physical violence as directed towards another or the child. IL has enacted a statute for this
consideration
A large number of states now equire that evidence of domestic violence be considered in assigning
custody and visitation rights, and many also provide presumptions against joint custody in cases where there has
been domestic violence.
Race (p. 983): White parents, white baby, parents divorce, mom remarries black man, dad files for custody.
Trial court gave custody to the father, but the US SC said you can't do that. The court cannot control or justify
racial discrimination as a means for taking a child away from its natural mother.
Religion (p. 981, 987): A child's legal custodian generally has authority to control a child's religious training but
numerous cases have held that this authority does not permit the custodian to limit the other parent's religious
activities with the child
Parents' religious affiliations or practices are generally not a permissible consideration in making an
initial custody determination; however where the child has an established religious identity, courts seem to be
more willing to take this into account.
750 ILCS 5/608 Judicial Supervision. (a) Except as otherwise agreed by the parties in writing at the
time of the custody judgment or as otherwise ordered by the court, the custodian may determine the child's
upbringing, including but not limited to, his education, health care and religious training, unless the court, after
hearing, finds, upon motion by the noncustodial parent, that the absence of a specific limitation of the
custodian's authority would clearly be contrary to the best interests of the child.
 The parties can agree to a religious upbringing for the child, but courts are unwilling to enforce
agreements to raise a child with a certain religion
 Kendall v. Kendall- kids brought up Jewish, but then the father became a born again Christian and takes
the kids on the weekends to a Christian church, and the father was telling the kid's that their mother was
going to hell. The court enjoined him from preaching that’s ort of religion to his children because it was
harmful to the children.
Name Change (p. 981)- If mother remarries and the child becomes close with the step-father there is a
presumption that the children should continue to be known by their father's last name in some jurisdictions.
Courts look at factors including the preservation of the father-child relationship, identification of the
child as part of a family unit, wishes of the child, the child's age and maturity, the nature of the family
situations, any miscondct or neglect of the child by the parent opposing the change, the child's customary name,
and the opposing parent's conduct toward the child and the other parent during the marriage
 Ronan v. Adely (N.J. 2004)- Presumption in favor of name change to custodial parent
5/608 Judicial Supervision
(c) The court may order individual counseling for the child, family counseling for one or more of the parties and
the child, or parental education for one or more of the parties, when it finds one or more of the following:
(1) both parents or all parties agree to the order;
(2) the court finds that the child's physical health is endangered or his or her emotional development is
impaired including, but not limited to, a finding of visitation abuse as defined by Section 607.1; or
(3) the court finds that one or both of the parties have violated the joint parenting agreement with regard
to conduct affecting or in the presence of the child.
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

The court can order counseling or mediation, unless you're getting into a domestic violence situation
Under CRIMINAL LAW- visitation abuse has become a crime 607.1(g)
o (g) A person convicted of unlawful visitation interference under Section 10-5.5 of the Criminal
Code of 1961 [FN2] shall not be subject to the provisions of this Section and the court may not
enter a contempt order for visitation abuse against any person for the same conduct for which the
person was convicted of unlawful visitation interference or subject that person to the sanctions
provided for in this Section.
§ 607.1. Enforcement of visitation orders; visitation abuse.
(a) The circuit court shall provide an expedited procedure for enforcement of court ordered visitation in
cases of visitation abuse. Visitation abuse occurs when a party has willfully and without justification: (1) denied
another party visitation as set forth by the court; or (2) exercised his or her visitation rights in a manner that is
harmful to the child or child's custodian.
IRMO Dean- Custodial parent has authority over upbringing, schooling, etc. The court also said that
alternating or rotating custodial agreements are viewed with disfavor
REMOVAL from the state
Baures v. Lewis ….. p. 996
 within 4 years of a separation of a marriage/ divorce case, the mother moves in 20% of the cases
 couple married and living in NJ. Divore and mother wanted to move to WI so her parents could help her
raise the child who was autistic. The father refused to move claiming he couldn't move because he was
in the Navy. Trial court denied. Dad got out of navy, but trial court denied again. The NJ SC said the
custodial parent has to show a good faith reason/motive for the move and it has to be for the
child's best interest. Non-custodial parent must prove that it is not good faith and that it's against
the child's best interest.
 Here the case was remanded based on this new standard.
 ****Growing trend in the law easing restrictions on the custodial parent's right to relocate
 FACTORS TO CONSIER IN DECIDING REMOVAL: reason for the move, reasons given for the
opposition, past history of dealings between the parties insofar as it bears on the reasons advances by
bother parties for supporting and opposing the move,
IRMO Eckert (IL 1988); IL FACTORS TO CONSIDER FOR DECIDING REMOVAL
 Likelihood of enhancing the general quality of life for both custodial parent and children
 Motives of custodial parent in seeking move
 Motives of noncustodial parent
 Whether realistic and reasonable visitation schedule can be reached if move is allowedc
IRMO Collingbourne (Ill. 2003)- Change in visitation is not enough; There is still the ability to have ongoing
contact.
750 ILCS 5/609 Leave to Remove Children
(a) The court may grant leave, before or after judgment, to any party having custody of any minor child
or children to remove such child or children from Illinois whenever such approval is in the best interests of such
child or children. The burden of proving that such removal is in the best interests of such child or children is on
the party seeking the removal. When such removal is permitted, the court may require the party removing such
child or children from Illinois to give reasonable security guaranteeing the return of such children.
(b) Before a minor child is temporarily removed from Illinois, the parent responsible for the removal
shall inform the other parent, or the other parent's attorney, of the address and telephone number where the child
may be reached during the period of temporary removal, and the date on which the child shall return to Illinois.
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The State of Illinois retains jurisdiction when the minor child is absent from the State pursuant to this
subsection.
Fisher v. Waldrop (Ill. 2006)- In paternity cases, it is required that the person come before the court and has the
burden of proof to show that the move is in the best interest of the child, even if it’s a paternity action.
Newsweek articles /
IRMO Samardzija (Ill. App. 2006): Court imposed a limitation on how far the custodial parent could move
away from their previous home. The trial court over-did it.
 In general a custodial parent need not obtain judicial approval before moving to another location
within IL, although the parties can establish principles to not move within their agreement
 Consistent with the trial court's broad powers it may condition custody upon the parent living
within a reasonable distance from the noncustodial parent to facilitate visitation
 Geographic limitations on where the custodial parent should live can only be imposed where the
evidence establishes a specific need to do so.
IRMO Mitchell (Ill. App. 2001)- Court lacks authority to enforce a parent to visit their child, but since the parent
wasn't utilizing the time allotted or visitation, then the court made the absent parent pay for extra child care.
Forced contact (Carlton v. Carlton p.1009)
C. PARENTS AND NONPARENTS
Troxel v. Granville ….. p. 1016
 Baby between unmarried parents, father committed suicide. Afterwards the mother still let the child see
the father's parents, but this eventually waned. WA had a statute allowing any person to petition for
visitation rights. WA trial court allowed the grandparents visitation a weekend a month, a week in the
summer etc. This was more than the mother wanted, but much less than the grandparents wanted. The
mother appealed and meanwhile got married to another man who adopted the child as his own. The WA
SC reversed the trial courts decision holding that the WA statute was sweepingly broad because it said
"any person" can petition the courts for visitation, and even if the statute was narrowed the statute didn't
provide any threshold of harm at which the courts could intervene. WA SC found the statute
unconstitutional on its face. Grandparents appealed
 US SC HOLDING
o Not unconstitutional on its face; WA statute is unconstitutional as applied in this case
o
o This law gave the judge the ability to decide what's best for the child without taking into account
the decisions of the parents and what the parents wanted to do in rearing their child
o Statute cannot give the judge an arbitrary right of what is best and the law must be more narrow
o Court is specifically NOT saying something: they did not say there is a problem with nonparental visitation statutes
o Court was hesitant to hold that it violated the constitution per se because these cases should be
analyzed on a case by case basis
o Unconstitutional for 3 reasons
 Court has protected fundamental right of parents to rear their children; the liberty interest
of parents: the care, custody, and control of their children, is one of the strongest
recognized fundamental rights
 A person has the right to be free from unwarranted governmental intrusion
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

There is a presumption that fit parents act in the best interest of their children
In the facts of the case there are no allegations that the mother maliciously tried to cut off
the visitation of the parents, and the court must find that the parent unreasonably denied
the grandparent visitation of the grandparents (supreme court cited Mississippi and
Oregon statutes here that there must be unreasonable denial by the parents for the
grandparents to get their foot in the door.)
Notes
 ILLINOIS: Fit parents do not act in a fashion to harm their children
 Note 4: Some states have upheld their grandparents statutes (11), and others have held them
unconstitutional (9)
 ILLINOIS
o Lulay v. Lulay: Joint custody and both parents are opposed to the grandparents having visitation.
Both parents opposed to grandparents having visitation. The statute at the time (we now have a
new one) said that when the parents are not cohabitating
o Statute was unconstitutional as applied in this case and said that there must be strict scrutiny so
the state must show a compelling interest
Wickham (IL 2002)- Consolidated two cases and the grandparents wanted visitation. Trial court allowed the
grandparents visits, and the appellate court passed it off to the IL SC. The IL SC reversed and found that the IL
statute is unconstitutional on it's face as per the Cook County Case. As per the Kankakee County Case- the
court held that the statute was unconstitutional on its face.
 There is a presumption that a fit parent's decision is in the child's best interest
 Note 6: One of the fundamental rights: decision of parents to care and control their children without
intrusion

In re M.M.D. (ILLINOIS 2004): Natural parents and grandparents in dispute. IL SC Says that grandparent
visitation rights were not based on a court order interpreting the unconstitutional visitation statute, but was
based on a consent decree that both parents agreed to.
 Note 12: A consent decree entered into by natural parents was not void and unenforceable, and could not
be held as such unless it is detrimental to the public welfare
 ILLINOIS: Except as otherwise provided any grandparent/ great grandparent may file for visitation
rights IF there is an unreasonable denial of visitation by a parent AND at least one of the following
conditions exist
o One of the parents is deceased or is absent for a year
o The child's parents are divorced and legally separated for 3 months and at least one parents does
not object to the grandparent's visitation
o Visitation must not diminish the visitation of the parent that is not related to the grandparent
o In making this determination there is an irrebuttable presumption that the decisions of the parents
are not harmful to the physical, mental, or emotional health of the child.
607. Visitation.
(a) A parent not granted custody of the child is entitled to reasonable visitation rights unless the court
finds, after a hearing, that visitation would endanger seriously the child's physical, mental, moral or emotional
health. If the custodian's street address is not identified, pursuant to Section 708, the court shall require the
parties to identify reasonable alternative arrangements for visitation by a non-custodial parent, including but not
limited to visitation of the minor child at the residence of another person or at a local public or private facility.
(a-3) Grandparents, great-grandparents, and siblings of a minor child, who is one year old or older, have
standing to bring an action in circuit court by petition, requesting visitation in accordance with this Section. The
term "sibling" in this Section means a brother, sister, stepbrother, or stepsister of the minor child. Grandparents,
great-grandparents, and siblings also have standing to file a petition for visitation rights in a pending dissolution
proceeding or any other proceeding that involves custody or visitation issues, requesting visitation in
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accordance with this Section. A petition for visitation with a child by a person other than a parent must be filed
in the county in which the child resides. Nothing in this subsection (a-3) and subsection (a-5) of this Section
shall apply to a child in whose interests a petition is pending under Section 2-13 of the Juvenile Court Act of
1987 or a petition to adopt an unrelated child is pending under the Adoption Act.
(a-5)(1) Except as otherwise provided in this subsection (a-5), any grandparent, great-grandparent, or
sibling may file a petition for visitation rights to a minor child if there is an unreasonable denial of visitation by
a parent and at least one of the following conditions exists:
(A) (Blank);
(A-5) the child's other parent is deceased or has been missing for at least 3 months. For the purposes of
this Section a parent is considered to be missing if the parent's location has not been determined and the parent
has been reported as missing to a law enforcement agency;
(A-10) a parent of the child is incompetent as a matter of law;
(A-15) a parent has been incarcerated in jail or prison during the 3 month period preceding the filing of
the petition;
(B) the child's mother and father are divorced or have been legally separated from each other or there is
pending a dissolution proceeding involving a parent of the child or another court proceeding involving custody
or visitation of the child (other than any adoption proceeding of an unrelated child) and at least one parent does
not object to the grandparent, great-grandparent, or sibling having visitation with the child. The visitation of the
grandparent, great- grandparent, or sibling must not diminish the visitation of the parent who is not related to
the grandparent, great-grandparent, or sibling seeking visitation;
(C) (Blank);
(D) the child is born out of wedlock, the parents are not living together, and the petitioner is a maternal
grandparent, great-grandparent, or sibling of the child born out of wedlock; or
(E) the child is born out of wedlock, the parents are not living together, the petitioner is a paternal
grandparent, great-grandparent, or sibling, and the paternity has been established by a court of competent
jurisdiction.
(2) Any visitation rights granted pursuant to this Section before the filing of a petition for adoption of a child
shall automatically terminate by operation of law upon the entry of an order terminating parental rights or
granting the adoption of the child, whichever is earlier. If the person or persons who adopted the child are
related to the child, as defined by Section 1 of the Adoption Act, any person who was related to the child as
grandparent, great-grandparent, or sibling prior to the adoption shall have standing to bring an action pursuant
to this Section requesting visitation with the child.
(3) In making a determination under this subsection (a-5), there is a rebuttable presumption that a fit parent's
actions and decisions regarding grandparent, great-grandparent, or sibling visitation are not harmful to the
child's mental, physical, or emotional health. The burden is on the party filing a petition under this Section to
prove that the parent's actions and decisions regarding visitation times are harmful to the child's mental,
physical, or emotional health.
(4) In determining whether to grant visitation, the court shall consider the following:
(A) the preference of the child if the child is determined to be of sufficient maturity to express a
preference;
(B) the mental and physical health of the child;
(C) the mental and physical health of the grandparent, great-grandparent, or sibling;
(D) the length and quality of the prior relationship between the child and the grandparent, greatgrandparent, or sibling;
(E) the good faith of the party in filing the petition;
(F) the good faith of the person denying visitation;
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(G) the quantity of the visitation time requested and the potential adverse impact that visitation would
have on the child's customary activities;
(H) whether the child resided with the petitioner for at least 6 consecutive months with or without the
current custodian present;
(I) whether the petitioner had frequent or regular contact or visitation with the child for at least 12
consecutive months;
(J) any other fact that establishes that the loss of the relationship between the petitioner and the child is
likely to harm the child's mental, physical, or emotional health; and
(K) whether the grandparent, great-grandparent, or sibling was a primary caretaker of the child for a
period of not less than 6 consecutive months.
(5) The court may order visitation rights for the grandparent, great-grandparent, or sibling that include
reasonable access without requiring overnight or possessory visitation.
(a-7)(1) Unless by stipulation of the parties, no motion to modify a grandparent, great-grandparent, or
sibling visitation order may be made earlier than 2 years after the date the order was filed, unless the court
permits it to be made on the basis of affidavits that there is reason to believe the child's present environment
may endanger seriously the child's mental, physical, or emotional health.
2) The court shall not modify an order that grants visitation to a grandparent, great-grandparent, or sibling
unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior
visitation order or that were unknown to the court at the time of entry of the prior visitation, that a change has
occurred in the circumstances of the child or his or her custodian, and that the modification is necessary to
protect the mental, physical, or emotional health of the child. The court shall state in its decision specific
findings of fact in support of its modification or termination of the grandparent, great-grandparent, or sibling
visitation. A child's parent may always petition to modify visitation upon changed circumstances when
necessary to promote the child's best interest.
(3) Attorney fees and costs shall be assessed against a party seeking modification of the visitation order if the
court finds that the modification action is vexatious and constitutes harassment.
(4) Notice under this subsection (a-7) shall be given as provided in subsections (c) and (d) of Section 601.
(1.5) The Court may grant reasonable visitation privileges to a stepparent upon petition to the court by the
stepparent, with notice to the parties required to be notified under Section 601 of this Act, if the court
determines that it is in the best interests and welfare of the child, and may issue any necessary orders to enforce
those visitation privileges. A petition for visitation privileges may be filed under this paragraph (1.5) whether or
not a petition pursuant to this Act has been previously filed or is currently pending if the following
circumstances are met:
(A) the child is at least 12 years old;
(B) the child resided continuously with the parent and stepparent for at least 5 years;
(C) the parent is deceased or is disabled and is unable to care for the child;
(D) the child wishes to have reasonable visitation with the stepparent; and
(E) the stepparent was providing for the care, control, and welfare to the child prior to the initiation of the
petition for visitation.
(2)(A) A petition for visitation privileges shall not be filed pursuant to this subsection (b) by the parents or
grandparents of a putative father if the paternity of the putative father has not been legally established.
(B) A petition for visitation privileges may not be filed under this subsection (b) if the child who is the subject
of the grandparents' or great-grandparents' petition has been voluntarily surrendered by the parent or parents,
except for a surrender to the Illinois Department of Children and Family Services or a foster care facility, or has
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been previously adopted by an individual or individuals who are not related to the biological parents of the child
or is the subject of a pending adoption petition by an individual or individuals who are not related to the
biological parents of the child.
(c) The court may modify an order granting or denying visitation rights of a parent whenever modification
would serve the best interest of the child; but the court shall not restrict a parent's visitation rights unless it finds
that the visitation would endanger seriously the child's physical, mental, moral or emotional health.
(d) If any court has entered an order prohibiting a non-custodial parent of a child from any contact with a child
or restricting the non-custodial parent's contact with the child, the following provisions shall apply:
(1) If an order has been entered granting visitation privileges with the child to a grandparent or greatgrandparent who is related to the child through the non-custodial parent, the visitation privileges of the
grandparent or great-grandparent may be revoked if:
(i) a court has entered an order prohibiting the non-custodial parent from any contact with the child, and the
grandparent or great-grandparent is found to have used his or her visitation privileges to facilitate contact
between the child and the non-custodial parent; or
(ii) a court has entered an order restricting the non-custodial parent's contact with the child, and the grandparent
or great-grandparent is found to have used his or her visitation privileges to facilitate contact between the child
and the non-custodial parent in a manner that violates the terms of the order restricting the non-custodial
parent's contact with the child.
Nothing in this subdivision (1) limits the authority of the court to enforce its orders in any manner permitted by
law.
(2) Any order granting visitation privileges with the child to a grandparent or great-grandparent who is related
to the child through the non-custodial parent shall contain the following provision:
"If the (grandparent or great-grandparent, whichever is applicable) who has been granted visitation privileges
under this order uses the visitation privileges to facilitate contact between the child and the child's non-custodial
parent, the visitation privileges granted under this order shall be permanently revoked."
(e) No parent, not granted custody of the child, or grandparent, or great-grandparent, or stepparent, or
sibling of any minor child, convicted of any offense involving an illegal sex act perpetrated upon a victim less
than 18 years of age including but not limited to offenses for violations of Article 12 of the Criminal Code of
1961, [FN1] is entitled to visitation rights while incarcerated or while on parole, probation, conditional
discharge, periodic imprisonment, or mandatory supervised release for that offense, and upon discharge from
incarceration for a misdemeanor offense or upon discharge from parole, probation, conditional discharge,
periodic imprisonment, or mandatory supervised release for a felony offense, visitation shall be denied until the
person successfully completes a treatment program approved by the court.
(f) Unless the court determines, after considering all relevant factors, including but not limited to those
set forth in Section 602(a), that it would be in the best interests of the child to allow visitation, the court shall
not enter an order providing visitation rights and pursuant to a motion to modify visitation shall revoke
visitation rights previously granted to any person who would otherwise be entitled to petition for visitation
rights under this Section who has been convicted of first degree murder of the parent, grandparent, greatgrandparent, or sibling of the child who is the subject of the order. Until an order is entered pursuant to this
subsection, no person shall visit, with the child present, a person who has been convicted of first degree murder
of the parent, grandparent, great-grandparent, or sibling of the child without the consent of the child's parent,
other than a parent convicted of first degree murder as set forth herein, or legal guardian.
Blakely v. Blakely (Missouri 2002): Parents are still married and the grandparent is requesting visitation, but the
parents are denying visitation. The MO SC said that if the grandparent was unreasonably denied visitation for
90 days it was unconstitutional BUT After pending the state legislature amended the law and said that if the
visitation is denied unreasonably more for 90 days, and the parents are still living together, the grandparent
cannot file for visitation
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750 ILCS 5/601
(a) A court of this State competent to decide child custody matters has jurisdiction to make a child custody
determination in original or modification proceedings as provided in Section 201 of the Uniform Child-Custody
Jurisdiction and Enforcement Act [FN1] as adopted by this State.
b) A child custody proceeding is commenced in the court:
(1) by a parent, by filing a petition:
(i) for dissolution of marriage or legal separation or declaration of invalidity of marriage; or
(ii) for custody of the child, in the county in which he is permanently resident or found;
(2) by a person other than a parent, by filing a petition for custody of the child in the county in which he
is permanently resident or found, but only if he is not in the physical custody of one of his parents; or
(3) by a stepparent, by filing a petition, if all of the following circumstances are met:
(A) the child is at least 12 years old;
(B) the custodial parent and stepparent were married for at least 5 years during which the child resided
with the parent and stepparent;
(C) the custodial parent is deceased or is disabled and cannot perform the duties of a parent to the child;
(D) the stepparent provided for the care, control, and welfare to the child prior to the initiation of
custody proceedings;
(E) the child wishes to live with the stepparent; and
(F) it is alleged to be in the best interests and welfare of the child to live with the stepparent as provided
in Section 602 of this Act.
(4) When one of the parents is deceased, by a grandparent who is a parent or stepparent of a deceased
parent, by filing a petition, if one or more of the following existed at the time of the parent's death:
(A) the surviving parent had been absent from the marital abode for more than one month without the
deceased spouse knowing his or her whereabouts;
(B) the surviving parent was in State or federal custody; or
(C) the surviving parent had: (i) received supervision for or been convicted of any violation of Article 12
of the Criminal Code of 1961 directed towards the deceased parent or the child; or (ii) received supervision or
been convicted of violating an order of protection entered under Section 217, 218, or 219 of the Illinois
Domestic Violence Act of 1986 for the protection of the deceased parent or the child.
(c) Notice of a child custody proceeding, including an action for modification of a previous custody
order, shall be given to the child's parents, guardian and custodian, who may appear, be heard, and file a
responsive pleading. The court, upon showing of good cause, may permit intervention of other interested
parties.
(d) Proceedings for modification of a previous custody order commenced more than 30 days following
the entry of a previous custody order must be initiated by serving a written notice and a copy of the petition for
modification upon the child's parent, guardian and custodian at least 30 days prior to hearing on the petition.
Nothing in this Section shall preclude a party in custody modification proceedings from moving for a temporary
order under Section 603 of this Act.
(f) The court shall, at the court's discretion or upon the request of any party entitled to petition for
custody of the child, appoint a guardian ad litem to represent the best interest of the child for the duration of the
custody proceeding or for any modifications of any custody orders entered. Nothing in this Section shall be
construed to prevent the court from appointing the same guardian ad litem for 2 or more children that are
siblings or half-siblings.
In re Kirschner (ILLINOIS 1995)- Man and his wife had relationship, she was expecting. Man went back to
Europe to visit friends and woman found out he was cheating on her in Europe. They slightly try to reconcile,
but then they break up. Woman goes into hospital and gives birth, and gives it up for adoption. She tells the
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father that it died. The adoptive parents have come in and adopted the baby and it is living with them (a couple
of years old now). The court decided that : determination that a parent doesn't have physical custody as to allow
a non-parent to seek custody does not turn on possession of the child, bt turns on whether the child had
determinately relinquished the child through a calculated decision or abandonment; the parent must knowingly
and indefinitely relinquish custody of the child
Charles v. Stehlik (Pa. 2000): Parents divorced, mother remarried, and then mother died. Step father filed for
custody. Step parent prevailed even though the other natural parent had kept up contact. The facts were such
that the step parent had a long time relationship with the child and it was in the best interest that the step child
get custody.
Natural Parent Presumtion (1032): In a lot of states if you have this, and a person other than the parent is
trying to seek custody of the child, that you have to prove that the natural parent is unfit, otherwise the natural
parent wins.
T.B. v. L.R.M. (Supreme Court of PA, 2001; 567 Pa. 222)
 Initial decision, the child was 4 years old. Women partners in a marriage like situation. One of them has
the child after artificial insemination. The other parent continues to care for the child once it is born. The
women break up and the non-biological mother wants to have visitation, and the natural mother refuses
visitation. Non-biological mother files suit "In loco parentis-" standing in the place of the parents. The
non-biological mother said she stood in place of the parents. The biological mother wins. Other mother
appeals
 When child is 11, the other mother has only seen the child once. The Supreme court denied certiorari,
and it is back in the PA Courts.
 Does the doctrine of in loco parentis recognized of a person who is sufficiently able to show the
relationship with the child is enough to show that they are a parent. If so should they be able to have
visitation
 The phrase "in loco parentis" refers to a person who puts oneself in the situation of a lawful parent by
assuming the obligations incident to the parental relationship without going through the formality of a
legal adoption. There are two parts: (1) the assumption of parental status and (2) the discharge of
parental duties.
 ILLINOIS- doesn't recognize in loco parentis.
In re C.B.L. (Ill. App. 2000)- Former same-sex partner of woman who gave birth to child by artificial
insemination brought petition for visitation with child. Court held that since the legislation did not mention
visitation for ex partners of the same sex, then there is no standing to sue for visitation of the child.
****An adopted parent has all of the rights as a natural parent
ILLINOIS- Same sex adoptions are ok, which would give same sex couples "in loco parentis" status.
Carvin v. Britain (Wash. 2005)- Courts were looking at expanding the idea f what "parent" can possibly mean
§ 602. Best Interest of Child.
(a) The court shall determine custody in accordance with the best interest of the child. The court shall consider
all relevant factors including:
(1) the wishes of the child's parent or parents as to his custody;
(2) the wishes of the child as to his custodian;
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(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person
who may significantly affect the child's best interest;
(4) the child's adjustment to his home, school and community;
(5) the mental and physical health of all individuals involved;
(6) the physical violence or threat of physical violence by the child's potential custodian, whether directed
against the child or directed against another person;
(7) the occurrence of ongoing or repeated abuse as defined in Section 103 of the Illinois Domestic Violence Act
of 1986, [FN1] whether directed against the child or directed against another person;
(8) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship
between the other parent and the child; and
(9) whether one of the parents is a sex offender.
In the case of a custody proceeding in which a stepparent has standing under Section 601, it is
presumed to be in the best interest of the minor child that the natural parent have the custody of the
minor child unless the presumption is rebutted by the stepparent.
(b) The court shall not consider conduct of a present or proposed custodian that does not affect his
relationship to the child.
(c) Unless the court finds the occurrence of ongoing abuse as defined in Section 103 of the Illinois
Domestic Violence Act of 1986, the court shall presume that the maximum involvement and cooperation of
both parents regarding the physical, mental, moral, and emotional well-being of their child is in the best interest
of the child. There shall be no presumption in favor of or against joint custody.
750 ILCS 5/607 (1.5) Visitation
(1.5) The Court may grant reasonable visitation privileges to a stepparent upon petition to the court by the
stepparent, with notice to the parties required to be notified under Section 601 of this Act, if the court
determines that it is in the best interests and welfare of the child, and may issue any necessary orders to enforce
those visitation privileges. A petition for visitation privileges may be filed under this paragraph (1.5) whether or
not a petition pursuant to this Act has been previously filed or is currently pending if the following
circumstances are met:
(A) the child is at least 12 years old;
(B) the child resided continuously with the parent and stepparent for at least 5 years;
(C) the parent is deceased or is disabled and is unable to care for the child;
(D) the child wishes to have reasonable visitation with the stepparent; and
(E) the stepparent was providing for the care, control, and welfare to the child prior to the initiation of
the petition for visitation.
IRMO Engelkens (Ill. App. 2004)- statute really had no application because the child wasn't 12, but the court
looked at the statute, and said that the provision for grandparents is unconstitutional on its face, and there out
the step-parent provision statute. ILLINOIS HAS NO STEPPPARENT VISITATION STATUTE
)
Standing (p. 1031
Miller v. Jenkins (Vt.) In re A.W.J. (Ill. 2001)
In re Strome (Ore. App. 2005)
Natural Parent Preference (p. 1032)
Hockstok (Ohio 2002
Stepparents (p. 1033)/ 750 ILCS 5/601 (b) (3); 5/607 (b) (1.5)
IRMO Booth (Ill. App. 2001)
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Defenses to grounds for divorce have more application in "fault divorces"
 Even though fault refers to marital defenses, even if a spouse was to contest irreconcilable differences,
then the other spouse could introduce evidence of fault like adultery
 The fact that a spouse committed the same offense, would not be a defense, but would should
irreconcilable differences if each party suggested cheating
 Condonation can also be an attempt for reconciliation
IRMO Hightower- you only need in rem jurisdiction if you're only going at the bonds of marriage. You need
personal jurisdiction when you're going after child support, property, etc
Service by mailing is appropriate when you can't get appropriate service
Estin v. Estin- if NE had a longarm statute to show that Mrs. Estin had a connection with the state and she was
personally served in NY then NY would have jurisdiction, but these were not the facts
END OF CLASS
 Who can file/ petition for custody
 What does it mean to be in the actual physical custody of a parent (baby Richard case)
o When one parent dies does it automatically turn over to another parent
 Hague Convention- deals with where you hear a case in international custody suits.
o 1. There must be a wrongful removal, 2. From a habitual residence,
o Defenses: Great risk of harm to send the child back psychological, physical harm, hurt
fundamental rights), statutory limitations, not exercising rights, child's preference
o Blondin v. DuBois
Leavy v. LouisianaLA Case- An illegitimate child; what kind of rights surround the child. There was a wrongful
death of the mother. Under LA law at the time, only legitimate children can have suits brought on their behalf.
SC said this was unconstitutional
Blumon- Wrongful death of illegitimate child. Who can sue for that? The lower court said only mother of
legitimate children could sue. This was of court unconstitutional
Case- Father dies and has not written a will, but he has acknoeldged the illegitimate child during life, and the
law in the state said that even though the child was acknowledged it was still not on the same level of the
legitimate child. SC said this was ok.
Later Case- said only acknowledged children were allowed to take in a probate case
Illinois Case- father died without a will. Court said only illegitimate that were later legitimized (parents marry
after birth). This was unconstitutional
EXAM INFORMATION
 1 question from chapter 8 on syllabus (but not stock options or pensions) (not ch. 8 in book)
 1 question from chapter 9 on syllabus (involves UIFSA and child support)
 1 question from Chapter 10 on syllabus (child custody)
 Closed book, 3 questions
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