Publications
Tapping Damages: Damages for Pain and Suffering Can be Tapped for Child Support
Published in Chicago Lawyer Magazine, August 2018
By Daniel Stefani
The Fourth District Appellate Court rendered a recent Opinion of In Re Marriage of Plowman v. Lawson (2018 IL App.4th 170665). In Plowman, the trial court set a child support order using a small portion of a personal-injury settlement as income available for child support. The portion of the settlement was only the amount attributable to lost earnings. The appellate court reversed and on remand directed the trial court to consider the entirety of the net proceeds from the payee’s personal-injury settlement as income for child support purposes. This opinion furthers the inconsistency between the appellate court districts in Illinois as to the portion of any lawsuit settlement that can be considered income for child support purposes.
Read More
What is Cohabitation?
Published in Chicago Lawyer Magazine, June 2018
by Daniel R. Stefani
If a spouse receiving maintenance cohabits with another person on a resident, continuing conjugal basis in accordance with Section 510(c) of the Illinois Marriage and Dissolution of Marriage Act, maintenance terminates retroactive to the date the Court finds that the payee spouse or ex-spouse has cohabited. As a result, the payee spouse then must refund any maintenance paid after the date the Court finds cohabitation. A payor spouse who seeks termination of their maintenance obligation has the burden of establishing that the payee spouse is cohabiting on a resident, continuing conjugal basis. It is the payor spouse’s burden to make a “substantial showing that the former spouse is involved in a de facto husband and wife relationship with a third party”.
Read More
What’s in a Name?
Published in Chicago Lawyer Magazine, April 2018
by Daniel R. Stefani
It is very rare in a pending divorce where the litigants have a dispute over the children’s surname, so when I came across the case of In Re Marriage of Piegari, 2016 Ill.App.2d 160594, it was worth a look. In 2016, during the pendency of their divorce proceedings, Karen Piegari filed a petition seeking a Court order to change the children’s surnames pursuant to Section 21-101 of the Illinois Code of Civil Procedure. Earlier in the proceedings, the Court entered an agreed parenting plan which allocated to Karen a majority of the parenting time but granted both parties equal decision making responsibilities for the children. At the time of filing, the parties’ dissolution case was still pending in the Trial Court.
Read More
Disgorgement of Divorce Attorney Fees
Published in Chicago Lawyer Magazine, February 2018
by Daniel R. Stefani
On November 30, 2017, the Illinois Supreme Court issued the opinion of In re the Marriage of Christine Goesel and Andrew Goesel, 2017 IL 122046. The Court held that attorney fees earned by a party’s lawyer in the normal course of representation for past services rendered are not “available funds” to be disgorged and paid to the opposing parties’ attorney within the meaning of Section 501(c-1)(3) of the Illinois Marriage and Dissolution of Marriage Act (“the Act”).
Read More
When is a Post-Dissolution Order Appealable?
Published in Chicago Lawyer Magazine, November 2017
by Daniel R. Stefani
Following a Judgment of Dissolution of Marriage, often years later, cases end up back in court on post-dissolution motions and/or petitions. Typically there are requests to modify child support, maintenance, parental decision making and/or parenting time. Many times the trial court adjudicates some but not all of the pending motions or petitions. In such circumstances there is always a question as to whether the resulting order is final and appealable and whether the appellate court has jurisdiction over certain appeals and pursuant to what Supreme Court Rule. For many years there has been a split between the Appellate Court Districts as to when a post-dissolution order is final and appealable. In 2009 the Illinois Supreme Court in Gutman was presented with the issue and following the decision, the Appellate Districts continued to struggle with different interpretations.
Read More
Does Permanent Mean Forever?
Published in Chicago Lawyer Magazine, September 2017
by Daniel R. Stefani
Hot off the press is In re the Former Marriage of Bernay, 2017 IL App (2d) 160583. The Second District Opinion is a must read for any payor or potential payor of permanent maintenance. In some ways, this Opinion redefines the longstanding definition of permanent maintenance as is understood in most divorce Courts in Illinois. After a 14 year marriage, Wife petitioned to dissolve the marriage. At the time, the children were still minors. At the time of the parties’ dissolution, Wife had graduated with an Associate’s Degree and was employed as a nurse. Husband earned an average of approximately $125,000 per year. The Judgment for Dissolution of Marriage provided that ex-Husband would pay ex-Wife $4,150 per month in unallocated maintenance and child support, reviewable after 36 months. In 1999, at the review hearing, ex-Wife earned $28,000, and ex-Husband earned approximately $383,000. At the review hearing, the Court increased ex-Wife’s unallocated maintenance and child support to $6,000 per month, reviewable after 60 months.
Read More
What is a minor modification of parenting time not requiring a showing of substantial change in circumstances?
Published in Chicago Lawyer Magazine, July 2017
by Daniel R. Stefani
In the recent 4th District Opinion of In Re Marriage of Theresa O’Hare and Ronald Stradt, the Court gave us some insight as to the definition of “minor modification” in Section 610.5(e)(ii) of the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) which became effective January 1, 2016.
Read More
Mediation in Divorce
Published in Chicago Lawyer Magazine, May 2017
by Daniel R. Stefani
For as long as I can remember, when it comes to custody issues in a divorce case, Cook County Local Rules have always required parties to mediate these issues. For almost 3 years now, Cook County Local Rules allow Courts to order litigants to mediation on financial issues. So far, it has been an effective way to resolve tough financial issues that would otherwise have gone to trial.
Read More
Can I use my spouse’s emails in divorce litigation?
Published in Chicago Lawyer Magazine, March 2017
by Daniel R. Stefani
We hear it all the time in clients’ initial consultations. Can I look at my spouse’s emails on our home computer? The first question I have is how would you acquire such emails? We then discuss whether that acquisition and/or use of emails could violate some State or Federal law regarding eavesdropping, wiretapping, etc. The law is still somewhat unclear in Illinois. However, the Seventh U.S. Circuit Court of Appeals decided a case on the subject on December 14, 2016. In Case No. 15-2076, Barry Epstein, Plaintiff-Appellant, v. Paula Epstein and Jay Frank, Defendants-Appellees. The Seventh Circuit held that putting an auto-forward on your spouse’s email account when you suspect he is cheating on you could violate the Federal Wiretapping and Electronic Surveillance Act.
Read More
Doing Really Hard Time
Published in Chicago Lawyer Magazine, December 2016
by Daniel R. Stefani
What does the divorce court do with proceeds from a lawsuit for a wrongful conviction when the conviction occurred before the marriage and was reversed during the marriage? In a recent decision of In re Marriage of Rivera, 2016 Ill. App. (1st) 160552, Petitioner was convicted for murder in 1993 and was incarcerated from the time he was arrested in 1992 until January 2012. In January 2012, his conviction was reversed by the Appellate Court. While Petitioner was incarcerated, he and Respondent got married on October 31, 2000. Petitioner filed a Petition for Dissolution of Marriage in 2014 and in March 2015, he settled a lawsuit for wrongful conviction and received a net amount of $11.36 million.
Read More