Divorce Lawyers New York - Recent Family Law Decisons (36)
RECENT FAMILY LAW DECISIONS (36)
Maintenance Distinguished
Monthly payments former husband made towards payoff of a loan on a car, which was awarded to his former wife under the parties marital settlement agreement, were part of the parties property settlement and did not constitute maintenance, even though the settlement agreement referred to them as maintenance; thus, the payments could not be terminated under 750 ILCS 5/510(c) regardless of the wife’s living arrangement with a new boyfriend.
The parties to a divorce intended that their agreement constitute a property settlement, where the agreement plainly provided that the payments were for and in consideration of the wife quitclaiming her interest in various pieces of marital property, both parties expressly waived all claims to alimony, and the agreement’s provision for a definite total sum was to be paid at the end of a definite period of time rather than on a periodic basis for an indefinite period of time which is characteristic of maintenance.
Marital Home
Award of exclusive possession of the marital home to wife unambiguously constituted a property disposition which could not be modified and not an award of nonmonetary child support or other modifiable subsidy.
Modification of Agreement
The awarding of exclusive possession of the residence to petitioner was in the nature of a property settlement where this award was party of the paragraph awarding two parcels of real property, both previously owned in joint tenancy, to the respondent, in return for quitclaiming to respondent all her interests in the property, petitioner was allowed to remain in the premises unless she remarried; this conclusion is buttressed by the fact that a different paragraph of the decree provided for monetary payments to petitioner of up to $1,000 each year depending on respondent’s level of income, therefore, the trial court improperly modified a property settlement provision of the original divorce decree.
Modification Improper
Husband’s obligation to pay the outstanding indebtedness on a house owed to bank amounted to a nonmodifiable property settlement in lieu of maintenance, and was not periodic maintenance terminable on the wife’s remarriage.
Provisions in a judgment of dissolution which constitute a disposition of property or property settlement are generally not modifiable or revocable as property rights created by such judgment become vested when judgment is final, therefore court lacks general jurisdiction to modify.
Circuit court’s determination to modify the property settlement agreement requiring petitioner to pay the entire sum of the monthly mortgage payments as they came due was in error as a matter of law because the award was a property disposition and nonmodifiable under subsection (a).
Subsection (a) did not grant the trial court the broad authority upon which it relied to vary the terms of the initial marriage dissolution judgment.
Pursuant to section 18 of the former Divorce Act, provisions respecting the disposition of the parties’ property incorporated I a divorce decree are not subject to modification, whether labeled a property settlement or an award of alimony in gross payable in installments.
