Herbert v. Cunningham (2018 IL App 172135) - Wife had waived all claims to husband’s retirement in the divorce, but husband failed to update his beneficiary designations with the retirement plan. Upon death of husband, the retirement plan paid benefits to ex-wife as required by the retirement plan. The husband’s estate sued the ex-wife for the funds paid to her. The courts held that as the ex-wife had waived her claim to the retirement plan, just because the plan paid her as the plan was required to do, ex-wife had no right to the money and the ex-wife had to return the funds to the deceased husband’s estate.

There are many cases in which parties fail to update their beneficiaries, resulting in this type of controversy and expense. A divorce order does not change all the arrangements with creditors, retirement plans, insurance, etc. and it is important the parties follow through after the divorce in changing all those arrangements as appropriate in light of the divorce.

Marriage of Jones (Case # 2019 Il App (5th) 180388) - The issues in family law cases often extend past the initial court proceedings, with claims of non-compliance by one party against the other. Often parties pursue contempt proceedings under the mistaken impression that a contempt finding will result in a monetary award for alleged damages. This decision restates the accurate purpose of a contempt proceeding - “…. In a civil contempt proceeding in Illinois, a court may imprison or fine for contempt of its orders, but it is without authority to recompense an aggrieved party for his or her damages.”

Marriage of Izzo (Case # 2019 IL App (2nd) 180623) - Father’s child support was set in 2008 and a change of custody occurred in 2013. In 2018 Father petitioned to modify his child support in light of the 2013 change in custody. The trial court rejected the petition, finding that the change in custody was not recent enough to be a change in circumstances to allow a change in child support. The Appellate Court determined: “We hold that the trial court made an error of law when it found the change in custody to be too remote to constitute a substantial change in circumstances. The circumstances at the time of a petition to modify must be measured against the circumstances at the time of the most recent support judgment, not against the circumstances at some time between the two events. The change in custody alone is enough to establish a substantial change in circumstances justifying a reduction in the child-support amount.”

Although a party should move promptly to address with the court any changes in child support, this decision clarifies that failure to move to change child support at the time of a change in custody will not prevent a review of child support at a later time in light of the change of custody.

Custody of K.N.L (2019 Il App (5th) 190082) - Grandparents sought custody (parental responsibility) of grandchild who had been in the care for several years with the knowledge of the parent. The law on parental responsibilities allows a non-parent to seek custody if several conditions are met, including that the child has been in the “custody” of the non-parent. The trial court found that while the grandparents had been caring for the child, the parent never gave up legal custody to the grandparents and that the statute requires more than “possession” of the child to allow the non-parent to proceed. The Appellate Court agreed: “The petitioners clearly had physical possession of K.L. for a 2½-year period and maintained responsibility for her daily welfare during that time. However, as we have previously stated, the determination that a parent does not have physical custody of a child does not turn on possession. *** The petitioners’ burden was to demonstrate that they had standing in the custody proceedings; they were required to show that Moore voluntarily and indefinitely relinquished physical custody of K.L. Upon our consideration of the factors, we agree with the trial court that they failed to meet that burden.”

It seems that more and more parents are turning to the grandparents to care for the grandchildren. When grandparents are asked to care of a grandchild, the parents and grandparents should consult attorneys as to the best legal form to accomplish their goals, as informal agreements tend to only generate future controversy.

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