Gitlin on Divorce: A Guide to Illinois Family Law, 4th Edition, 2020-2021
Highlights 2019 / 2020
New in 2019
- Illinois maintenance law is again rewritten. Our 2019-2020 edition of Gitlin on Divorce fully incorporates its impact.
The 2019-20 release had included:
Overview Chapter: In 2019, the overview chapter was completely updated and heavily rewritten to fully integrate all of the recent changes to Illinois family law.
Collaborative Divorce Chapter (Ch. 1A new in 2018): This edition of Gitlin on Divorce includes a significantly reworked collaborative divorce chapter, including references to the 2018 Supreme Court Rule and new appendixes.
Property Ch. (Ch. 8): The property chapter incorporates Public Act 100-871 in light of the 2019 changes to the Illinois law beneficiary designation law and includes a discussion of the 2018 U. S. Supreme Court decision in Sveen v. Melin.
Premarital Agreements (Ch. 9): The premarital agreement chapter had been one of the few chapters that had not earlier gone through extensive updates. But with the two significant 2018 appellate court decisions, this chapter is brought up to date. We have now broken down case law based on those decided under common law and decided under the Illinois Uniform Premarital Agreement Act.
Child Support (Ch. 10): The child support chapter has been updated to fully integrate the changes due to the 2019 reworking of the maintenance guidelines. Throughout the support chapter, we have been careful not to use the phrase “minimum” child support guidelines. We no longer refer to minimum guidelines because with income-shares, Illinois simply has our child guidelines. The treatment of dependency exemptions has been updated to make it clear that only the value of the dependency exemption itself is suspended through 2025 and the allocation the exemption (and with it the under-age-17 child tax credit) remains important.
Allocation of Parental Responsibilities (Ch. 11): The chapter formerly tiled custody has been updated to include a section regarding 50/50 shared parenting time (custody) and the aggressive legislative agenda for some in the father’s rights community to change Illinois laws to create a 50/50 presumption. This 2019-20 update includes a Section by Dr. Sol Rappaport, Ph.D., ABPP, providing an expert’s opinion on shared parenting and this legislation was updated in 2020 because the bill once again stalled even before the impact of Covid-19.
Relocation (Ch. 12): Our Illinois Supreme Court weighed in on its second case under our reworded relocation statute. This edition discusses the In re Fatkin decision that essentially ruled that the appellate court should not substitute itself for the trial court where the trial court reviewed and applied the 10-plus statutory factors.
Visitation (Ch. 14): Public Act 100-706 is integrated into this update of our visitation chapter that amends Section 602.9 of the so-called grandparent visitation provisions.
Maintenance (Ch. 15): The maintenance chapter has again been comprehensively reworked and edited. Recall that every year from 2015 through 2019 we have had significant changes to the statutory law regarding maintenance with the guidelines being introduced in 2015. The 2018 update had addressed the impact of Public Act 100-520 that expanded the maintenance guidelines to include cases with a combined gross annual income of $500,000, and eliminated the term permanent maintenance, substituting the term “indefinite maintenance.” The 2018 update correctly anticipated the enactment of what became Public Act 100-923 that was necessary because of the loss of deductibility of maintenance for cases entered on or after January 1, 2019. The 2019-20 update completed the rewrite to the maintenance chapter fully incorporating overlooked changes to our statute.
Vacatur (16B): The vacatur chapter was updated because in 2016 Section 2-1401 of the Illinois Code of Civil Procedure had been amended to incorporate comprehensive provisions for potential meritorious defenses against the movant including new provisions involving domestic violence. This update recognizes the fact that no longer is a discussion necessary of a 2-1401 petition being predicated on a lack of subject matter jurisdiction in terms of void orders as ones being beyond the court’s specific statutory authority.
Attorney Fee (Ch. 19): The Attorney Fee Chapter has been updated to contain a new section, titled, “Attorney’s Failure to Control Client’s Litigiousness.” Clearly, a lawyer cannot control an overly litigious client other than withdraw. Nevertheless, the lawyer can continue to represent a client who is overly litigious; and case law has not been kind to lawyers in this circumstance. The attorney fee chapter has been further reworked at § 19-2[g] “Those Who Lack Standing to Seek Attorney Fees” in light of the 2018 In re Marriage of Kane decision. Further, the impact of Illinois Supreme Heroy decision cannot be understated in contribution petitions. The author recommends that the statute be modified to reflect the true intent of the “Leveling” amendments in this regard.
Domestic Violence (Ch. 21): The author considered renaming the domestic violence chapter intimate-partner violence based upon current terms of art. The domestic violence chapter is edited with a new introduction that addresses the distinction between intimate partner and domestic violence.
Third Volume: The Do’s and Don’ts Lists for individuals in parental allocation cases are now updated to be in keeping with the current state of the art including Adverse Childhood Experiences and divorce with a focus on the family-system dynamics in the cases that divorce lawyers and judges address in their day-to-day lives.
Forms: The summons form has been updated to be in keeping with the current electronic filing requirements and the required Supreme Court Rule 1 language. Other changes have been made including critical changes to the model marital settlement agreement.
New in 2020:
Venue/ SOJ Ch. (Ch. 3):
- 3-3[c] “Substitution for Cause” has been nearly entirely redone. It includes an entirely new section:
- 3-3[c][3] “Appealability of for-cause Denials.” This discusses the Morgan, 2019 IL App (3d) 180560 decision involving the failure to include the SCR 304(a) specifically required language.
Pleadings and Temporary Relief (Chapter 5). Section 5-1[g] “Motions Attacking the Petition/Complaint (Motions to Strike or Dismiss the Petition or Complaint)” incorporates a discussion of the 2020 Keller decision involving the effect of a voluntary dismissal on an interim fee award.
Property Ch. (Ch. 8): The property chapter has been reorganized where it addresses the important issue of reimbursement between estates (marital and non-marital). This chapter has been the largest chapter in Gitlin on Divorce. We now divide it into two parts and heavily update it.
- Part I Property. We continued work on the reimbursement section including a new section titled, “Loans Taken on Non-Marital Property and Repaid during the Marriage.” § 8-12[a].
Based upon the Illinois Supreme Court’s November 2019 Zamudio’s decision, the following section has been substantially updated:
-
- § 8-14[b][12][d] “Postmarital Golden Parachutes versus Purchase During the Marriage of Premarital Service Credits.”
- § 8-14[b][18] “Diminution of Benefits by Collecting Disability Benefits” has been heavily updated and now addresses the 2019 Shulga case that builds on our earlier decisions but from the perspective of surviving spouse’s rights.
- Part II Property. Section 8-14[g][11][b] “Lack of Proof of Market Value for Business” and § 8-17[b] “Finding of Value of Marital Residence” now address how the failure of proofs within the business valuation context is treated differently than in areas such as valuation of real estate consistent with the 2019 Hamilton decision. This same decision is also featured in the dissipation section involving the timing element where the appellate court limited dissipation to the post-separation period in the absence of sufficient evidence regarding when the marriage began undergoing an irretrievable breakdown.
Child Support Ch. (Ch. 10): 10-3[j][8] Business Income and Depreciation in Determination of Child Support has been heavily reworked in light of critical impact of the income sharing amendments on this issue. § 10-3[t] Credit for Child’s Social Security Benefits was updated in light of the 2019 Benyon decision involving SSDI benefits. The child support trusts section [10-7 Trusts (IMDMA Section 503(g))] was updated to more comprehensively address the 2016 Melamed v. Melamed decision. Section 10-14[b] “School and Extracurricular Expenses” addressed the impact of the 2019 IRMO Hamilton (involving whether horses lessons in this particular case were extracurricular expenses).
Allocation of Parental Responsibilities (Ch. 11):
- 11-2[b][2] “Inconvenient Forum and Forum Selection by Agreement” addressed a 2020 appellate court decision involving this issue.
- 11-2[b][3][a] “Communications Between Courts” was updated to include the March 2020 Rickett decision emphasizing the critical importance of their being a record of the communication between courts under the UCCJEA in claims of competing jurisdictions.
- 11-7[b] “Court Ordered Family Counseling” discussed the important Rule 23 Noyes decision involving GALs and 607.6 orders for counseling and legislation. But for the impact of Covid-19 I had anticipated legislation would be passed this year, addressing the problem articulated in the book regarding the GALs interviewing a counselor.
- § 11-8[b][3] “Allegations of Sexual Abuse in Parental Allocation Proceedings” has been renamed and now develops the two separate lines of case law involving hearsay allegations under the IDVA versus those in other proceedings under the Code of Civil Procedure. It includes a new section on the best protocols for interviews with young children.
- 11-8[e] “Confidentiality of Mental Health Records” has been nearly entirely redone. including a detailed discussion of the 2019 Garton v. Pfeifer decision, 2019 IL App (1st) 180872.
- 11-12[c] “Immunity of Guardian Ad Litem” addresses the important Illinois Supreme Court decision of Nichols v. Fahrenkamp, 2019 IL 123990 involving this issue.
- 11-18 “Mandatory Accelerated Disposition of Parental Responsibility Appeals or Relocation of Unemancipated Minors Appeals” was retitled and extensively redone.in light of the 2018 amendments to SCR 311.
Parental Allocation (Ch. 13): § 13-8 “Child Custody [Parental Responsibility] Proceedings by Grandparents of a Deceased Parent and by Step-parents,” has been comprehensively updated in light of the anticipated reversal by the Illinois Supreme Court of a case involving a civil union.
Maintenance (Ch. 15): Extensive work was done this this chapter in light of the fact that I had correctly anticipated the passage of the maintenance guidelines.
- 15-4[h] “Maintenance Award in Relation to Having Assets” has been extensively updated in light and reorganized. It includes a detailed discussion of the In re Marriage of Lugge, 2020 IL App (5th) 190046, involving the first time an Illinois appellate court has specifically weighed in [following the overhaul] on the reasonable return on investments as a factor in a maintenance award.
- 15-14[c] “Standard of Living.” A new subtopic was added involving lifestyle as including funds used toward investments.
- *15-14[d][2] “Social Security Income and V.A. Payments” has been nearly entirely reworked including the impact of the 2019 In re Marriage of Brunke decision, 2019 IL App (2d) 190201.
Modifications (Ch. 16):
- 16-4 “Death of Party, Bifurcation and Abatement of Action” has been updated in light of Claxton v. Reeves, 2019 IL App (5th) 170200 involving bifurcation in the middle of trial due to the failing health (and after trial death) of a party.
Modifications (Ch. 17): Section § 17-1[b][5] has been renamed and is now titled:
- “Modification of Support in Cases Involving Public Aid Services.”
- § 17-1[m] “New Spouse’s or Cohabitant’s Income” also has been updated in light of this being a more frequent issue in modification proceedings.
- § 17-2[i][2] “Evidence of Lifestyle Prior to Divorce,” has been redone because several 2019 and 2020 cases have focused on evidence of lifestyle prior to the divorce in maintenance review proceedings.
And much of the rest of the chapter has been extensively rewritten.
Enforcement (Ch. 18): The issue of distinguishing civil and criminal contempt was brought home in shades of Betts decisions in the recent 2019 In re Marriage of Pavlovich decision. Consider reviewing this important reworked section of the book for the importance of clarity in pleadings, findings, procedural safeguards, etc.
Attorney Fee (Ch. 19): The Attorney Fee Chapter has been comprehensively updated.
- We include the 2019 Illinois Supreme Court regarding SCR 137 proceedings and the ability of a lawyer defending himself pro se from a frivolous case to obtain a fee awards for sanctions.
- § 19-2[e][2] “Independent (Non-508) Proceeding” addresses a case of first impression involving a a client who did not initial and return the client’s statement of rights and responsibilities
- There is a new section, § 19-8[c][14] “Interim Fee Award to Non-Petitioning Party and Whether Fees Can be Granted to Lawyer Who Withdraws” involving the 2020 Marriage of Paris decision involving two issues of first impression in Illinois.
- 19-13[b] “Attorney Fees as Sanctions under Supreme Court Rule 137” incorporates a new discussion regarding another case of first impression, this one involving an 2019 Illinois Supreme Court decision, McCarthy v. Taylor, 2019 IL 123622, regarding whether fees may be awarded under SCR 137 for a lawyer defending himself against a frivolous claim.
Post-High School Educational Expenses (Ch. 20): The 2019 Illinois Supreme Court’s case addressing the Constitutionality of our statute is addressed in the introduction to the college education chapter. One should remember that Illinois is in the minority of states (15) that allow for a court ordered obligation in the absence of an agreement between the parties. Section 20-10[b] Marital Settlement Agreement That Prescribes Amount or Liability was comprehensively reworked in light of the fact that there is a tension between the fact that these obligations are modifiable as is child support but historically agreements would often limit the seeming ability to modify. The entire discussion regarding private primary and secondary schools has been redone in light of the impact of 2019 case law involving this issue and
Domestic Violence (Ch. 21): Our domestic violence chapter has now been comprehensively updated including a new section on venue in cases under the IDVA [§ 21-4 Commencement of Action and Venue under IDVA.] The remedies discussion of our statutory law now includes an “*” by each remedy that requires actual notice. There is a new section titled, “21-8[a][5] Necessary Findings for Order of Protection” that incorporates the impact of the 2019 Landmann decision. We also address the impact of the July 2019 suite of forms in DV cases that was recently approved. There is a a new Section, 21-8[j] “Hearsay Allegations of Abuse within Domestic Violence Proceedings” that consolidates the case law and statutory law.