Divorce Lawyers New York - Recent Family Law Decisons (19)
RECENT FAMILY LAW DECISIONS (19)
Settlement Agreement
Fraud or Coercion
A consent decree will be set aside and vacated where it has resulted from fraud or coercion by either party, or from inequity and unfairness in the terms of the settlement, at least where its execution has been accompanied by some element of coercion or misrepresentation.
Modification Allowed
The trial court properly concluded that a husband and wife could, under the terms of the property settlement agreement approved by a divorce decree, agree to a modification and that the court could ratify such agreement.
Trial of Issues
Where the respondent’s answer to plaintiff’s petition seeking modification of a divorce decree’s property settlement squarely put in issue the basic allegations of the petition, and contained averments which, if supported by the evidence, strongly suggested the absence of any fraudulent concealment, such pleadings raised issues of fact which had to be tried and the trial court’s order granting relief was reversed and remanded.
Construction
Mandatory Provision
Subsection (a) of this section is permissive and allows the trial court to exercise its discretion in modifying maintenance or support, while subsection (b) of this section is mandatory and flatly states that the obligation to pay maintenance is terminated by the resident, continuing conjugal cohabitation of the recipient with another person.
With Supreme Court Rules
Rule 296, Supreme Court Rules, does not authorize the court to ignore 750 ILCS 5/505 or this section, but merely provides an additional tool for the court to use in fairly resolving child-support disputes.
Default/Vesting Date
Each support or maintenance payment is vested on the date it becomes due, this date becoming the default/vesting date, which is important for: (1) calculating the total arrearage, (2) calculating the interest owed, if any (3) an indicator or factor in determining whether the conduct was willful or contumacious, and (4) calculating attorney fees under section 508 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/508).
