Case Law Update: Property, Child Support/College Expenses, and Maintenance

Posted by Erin Birt | Oct 07, 2011 | 0 Comments

Case law provides guidance for appropriate negotiating, the preparation of settlement agreements, and if necessary, trial preparation.  The following updates provide information about property classification, child support and expenses, and maintenance. Thus this post will focus on Case Law Update: Property, Child Support/College Expenses, and Maintenance.

Case Law Update: Property, Child Support/College Expenses, and Maintenance: Marital vs. Non-Marital Property

The timing of property acquisition is not the only factor in determining marital vs. non-marital property. In a recent case, the Circuit Court deemed certain property, a Chicago residence and an investment in a partnership, as non-marital property.  The Appellate Court, however, reversed.  It stated that the residence, although purchase prior to marriage, is marital property.  It was purchased in contemplation of marriage and paid for with marital funds since Husband obtained several mortgages on residence after the parties' marriage.  The investment was also marital property as funds derived from mortgages obtained during the marriage were used for the investment.  In re the Marriage of Weisman.

Case Law Update: Property, Child Support/College Expenses, and Maintenance: Child Support/College Expenses

When a Judgment for Dissolution of Marriage includes provisions that reserve the issue of future college expenses (aka Section 513 language), a court can only order payment on expenses that occur after the filing of a petition to allocate college expenses.  In this case, the mother had incurred expenses prior to filing her petition and the court erred in ordering the father to pay for expenses incurred prior to the filing date.  In re Marriage of Petersen.

Case Law Update: Property, Child Support/College Expenses, and Maintenance: Maintenance

If a judgment (that incorporates a settlement agreement) states maintenance is non-modifiable, it is non-modifiable, even if there are conflicting provisions within the settlement agreement.

Therefore, watch out for provisions in settlement agreements that render the judgment non-modifiable. Such language is often present in the maintenance provisions, or as a separate article within the settlement agreement.  There are times when such language is necessary; however, sometimes such language does not accurately represent the agreement of the parties.  There are forms out there that include a boilerplate article that ultimately renders maintenance non-modifiable. Make sure the article is appropriate and does not conflict with other internal provisions because if it does, the court will determine that maintenance is non-modifiable.  Recent examples of non-modifiability are In re Marriage of Nilles and In re Marriage of Doermer.

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About the Author

Erin Birt

Since 2003, Erin N. Birt, J.D., CADC has focused her practice on parenting time, divorce, mediation, and substance abuse issues. Ms. Birt's unique background in both family law and addictions counseling help her clients successfully navigate the complex issues of coparenting and divorce. Ms. Birt also devotes her time to presenting at continuing education seminars for attorneys, mediators, and counselors.


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