Illinois to Determine Who Gets Frozen Embryos After Couple Splits

Illinois is currently deciding its most complicated embryo dispute to date: What happens to frozen embryos when an unmarried couple calls it quits?

In 2010, Dr. Karla Dunston received a diagnosis of Lymphoma, which would be treated with chemotherapy. Knowing that chemotherapy would leave her infertile, she asked her then boyfriend, Jacob Szafranski, if he would be willing to donate his sperm to create pre-embryos in order to save her fertility. Although they had been dating only a few months, Szafranski voluntarily agreed.

The couple broke up a few months after the embryos were created and, in attempt to stop them from being used, Szafranski filed a lawsuit to prevent Dunston from using them. Szafranski is asking the court to order that they cannot be used until he consents.

To date, Illinois has not dealt with an unmarried couple’s disagreement regarding the use of frozen embryos and the rulings have not come easy. Dunston initially countersued and was granted custody of the embryos, to which Szafranski appealed. The appellate court handed the case back to the lower court with instructions to base the decision on contract principals rather than who has a greater interest in the case. The court again ruled in favor of Dunston and a second appeal has begun. Whoever doesn’t win will likely appeal to the Illinois Supreme Court and could possibly make it to the U.S. Supreme Court.

The couple signed an informed consent document at the clinic that stated “no use can be made of these embryos without the consent of both partners (if applicable).” While Dunston’s lawyer argues the contract was made orally when Szafranski agreed to assist with helping Dunston have a child, Szafranski’s lawyer claims there was no agreement until the informed consent was signed and therefore it should be enforced.

With the rulings so far, Illinois has set precedence for how to approach legal disputes involving the creation and use of frozen embryos. As a result of this case, Illinois courts will examine both the weight of each party’s interest as well as the contracts involved.

The parties have agreed not to make use of the embryos until the case is resolved. The results of this case, while changing both parties lives forever, will also set groundwork for many couples, including same sex couples who use alternative means of reproduction.

Illinois’ Richest Couple Battles Over Prenup Agreement

Ken Griffin, the billionaire founder of Citadel, is currently in a divorce battle with his wife Anne Dias-Griffin, a once equally successful hedge fund trader. While the disagreements and court battles began when Griffin filed the divorce in July of 2014, the newest conflict involves the validity of the Prenuptial Agreement signed by Dias-Griffin. The prenuptial agreement gives Dias-Griffin a right to a $25 million payout and $1 million for each year they were married. Griffin’s financial worth is approximately $5.6 billion.

The Illinois Uniform Premarital Agreement Act was adopted to create a set of rules for the creation and enforcement of premarital agreements. The act lists a number of ways to make a premarital agreement unenforceable.

The act states a premarital agreement is not enforceable if the party against whom it is sought proves either:

1. The party did not execute the premarital agreement voluntarily; or
2. The agreement was unconscionable when executed and before the party executed the agreement, that party;
   1. Was not provided with the other party’s fair financial disclosure; or
   2. Did not waive the right to disclosure of other party’s finances and did not have adequate knowledge of other party’s finances.

Dias-Griffin filed with the court to have the prenuptial agreement declared invalid as a result of having seen a psychologist with her soon to be husband a few days prior to the wedding. According to Dias-Griffin, the psychologist, who she was unaware already had a personal relationship with Griffin, suggested she avoid conflict before the wedding. Dias-Griffin claimed this caused her to feel extreme pressure to sign and therefore she did not sign the prenuptial agreement voluntarily.

In response Griffin filed a motion to strike the information about the psychologist visit from the record as a violation of the Illinois Mental Health & Developmental Disabilities Confidentiality Act.

During a 90-minute hearing where both sides presented their position, Griffin pointed out that Dias-Griffin had full knowledge of the agreement and signed and initialed every page in the presence of her attorneys. The court ruled in favor of Griffin, and Dias-Griffin can no longer insist that the visit to the psychologist led to duress in signing the prenuptial agreement.

Dias-Griffin has not given up on having the prenuptial agreement declared invalid and must now prove it was involuntary as a result of a different factor or is unconscionable as a result of unfair financial disclosure.

Related source: Chicago Business

New 911 Bill Now in Effect in Illinois

A new law that prevents establishments from forcing a guest to “dial out” before calling 911 went into effect late last week.

The new regulation applies to all businesses that require guests to press a number before entering in the phone number they wish to dial. Many hotels and restaurants used to require that a guest dial “9” before calling anyone outside the establishment, but that will no longer be the case.

The law received unanimous support after legislators heard the story of a young girl in Texas. In that case, the girl was in a hotel room when a man entered and stabbed her mother. Not knowing that she needed to dial “9” before hitting 911, the girl was unable to quickly reach the police. The girl’s mother died as a result of her wounds. Legislators in Illinois hope the new law will prevent a similar tragedy.

“When you dial those three digits you get to an emergency responder, you’re able to describe the situation. It will be of tremendous benefit to the emergency responders,” said Illinois State Representative Dan Belser.

Businesses that do not comply with the new law will face fines of $1,000 to $5,000. Those businesses that have been deemed incapable of complying based on their current phone setup will be required to follow the law the next time they update their phone system.

Many Illinois hotels said they have already changed their phone system to adhere to the new regulations.

Related source: KMOV

Court Rules Teen Can’t Force Parents To Pay For School

A New Jersey judge denied an 18-year-old’s petition to force her parent’s to pay for her education and housing in a case that has garnered national attention. 

Rachel Canning, 18, tried to sue her parents for living and tuition expenses after she claims the pair kicked her out of the house last year. Her parents told a different tale, saying that their daughter left home because she didn’t want to follow some simple house rules.

During the lawsuit, Canning claimed her parents were physically and verbally abusive before they kicked her out of the house. Canning has since been living with a friend, and she sued her parents for expenses and tuition costs for the private high school she attends, and for tuition expenses for the college she plans to attend this fall.

House Rules

Elizabeth and Sean Canning, the parents at the center of the case, tell a vastly different story. They say Rachel got upset after they laid down some ground rules after she:

• Got suspended from school

• Partook in underage drinking

• Began dating someone they didn’t think was a good influence on her

The judge was inclined to side with the parents after hearing both sides.

“Do we want to establish a precedent where parents live in constant fear of establishing basic rules of the house?” said Morristown Superior Court Judge Peter Bogaard. “Since if they institute a rule that Junior doesn’t like, Junior can move out. He can move in with another family, he could sue for child support, attorney’s fees, car, cell phone, and a few hundred grand in college.”

Bogaard recommended that both sides, which haven’t spoken to one another since October, seek counseling before the next scheduled court appearance in April.

Sean Sullivan comments

I’m all for a good lawsuit, but I would have to agree with the majority of public opinion that this lawsuit is frivolous. Essentially what this child is asking for is temporary support to be awarded while the case is pending.

Under Illinois law, a party to a family law case can ask for temporary support in the form of monetary payments as the case is pending. However, this provision in the law was intended to be generally be used by the custodial parent against a non-custodial parent who is failing to pay while a custody battle is being fought. I have never seen it employed by a child against a parent. Overall this case is sad because it is no doubt so contentious, but it will be interesting to watch and see how the rest of the pending issues are decided.

Related source: Today

Virginia Changing Stance On Gay Marriage Ban

A federal judge in Virginia who heard arguments on Tuesday in favor of repealing the state’s ban on gay marriage received no counter argument from the state’s newly elected Democratic attorney general, who is in favor of revoking the law.

Attorney General Mark Herring previously notified the federal court that he would not defend a 2006 voter-approved constitutional amendment that put a ban on same-sex marriage. Not surprisingly, this decision was met with uproar from Republicans who accused Herring of being disloyal to upholding the state’s current laws. Despite the Republican sentiment, Democratic Governor Terry McAuliffe said outside counsel would not be appointed to defend the ban.

Now that the Attorney General has absolved himself from the case, defense of the bill will fall to the legal team of the Norfolk Circuit Court as well as the religious group Alliance Defending Freedom, which will represent Prince William County.

A same-sex couple that was denied a marriage license in Norfolk Circuit Court originally filed the lawsuit challenging the constitutionality of the ban. The attorneys for the plaintiffs are the same counsel that successfully challenged California’s ban on gay marriage back in 2008.

Attorney Sean Sullivan comments

This is a fascinating twist in the fight towards legal equality for all types of couples. It sets an interesting legal and political precedent that could have major ramifications in states that are still fighting over civil rights issues and towards marriage equality.

It is not often that an attorney general openly states that he is in favor of repealing a law that his office is supposed to defend. His decision not to defend the case surely signifies a huge shift in how those in power view gay marriage. I would not be surprised if Virginia soon overturns its ban on gay marriage.

Related source: MSN.com

Gay Marriage Approved in Illinois

Gay marriage in Illinois won a monumental victory during Tuesday’s election when 61 members of the House, one more than the minimum, voted to approve the bill that would make same-sex marriage legal beginning on June 1, 2014.

“At the end of the day, what this is about is love,” said Representative Greg Harris. “It’s about family. It’s about commitment.”

The bill still needs to be signed by Governor Pat Quinn before it is made official, but Quinn has already stated that he intends to sign the bill before the end of the month. Once signed, Illinois will become the 15^th state to approve gay marriage.

Tumultuous Quest

Many proponents of the bill were unsure if the marriage proposal would gain enough support to make it onto Governor Quinn’s desk before the end of the year. The proposal failed during a January legislative session, but the Senate later passed the bill on Valentine’s Day. The bill made it through a veto session in October, but some people speculated that because candidate filings for next year’s election are only a few weeks away, some House members wouldn’t want to risk the PR hit by sticking their necks out for the bill, but 61 House members did.

Harris said the bill passed because it had support from Illinoisans all across the state.

“I think it says a lot about Illinoisans, I think it says a lot about Americans, I think it says a lot about where the country’s going,” Harris said. “You had Republicans voting for this bill, you had Democrats voting for this bill. You had folks from southern Illinois voting for this bill, from central Illinois, from the suburbs, from collar counties. You had African-Americans, you had Latinos, you had white, gay and straight.”

Others across the state say members of the Illinois Senate and House began to give gay marriage a more serious look when the United States ruled that The Defense of Marriage Act (DOMA) was unconstitutional. DOMA had prohibited same-sex couples that were legally married in their home state from receiving the same federal benefits that were available to heterosexual married couples. With Tuesday’s vote, same-sex partners in Illinois will soon be able to seek the same benefits endowed on their heterosexual counterparts.

Citizens across the nation lauded Illinois lawmakers for their decision, and even President Barack Obama issued an official statement.

“Michelle and I are overjoyed for all the committed couples in Illinois whose love will now be as legal as ours — and for their friends and family who have long wanted nothing more than to see their loved ones treated fairly and equally under the law.”

Sean Sullivan comments

This is certainly a historic and landmark change for the political and social climate of Illinois. Currently the Illinois Marriage and Dissolution of Marriage Act (IMDMA) is up for revision in the state senate. Now it may need even further revisions to include the addition of same-sex couples under its scope.

In theory, same-sex couples should now have the same rights and privileges as opposite same-sex couples under the IMDMA. Honestly, we just won’t know until a case is tried in court that involves a sex-same couple attempting to apply the IMDMA to their marriage. Stay tuned, this is a new area of family law that we are going to be watching closely!

Related source: Chicago Tribune

Same-Sex Couples Experience Extra Pitfalls During Divorce

A recent article by Judith Messina of CNBC examined some of the added difficulties same-sex couples face when going through a divorce. Sean Sullivan responds to the four pitfalls Messina outlined in her piece.

Pitfall #1 – Gay divorce is not legal in your state.

Sullivan: This is problematic for same-sex couples that traveled to another state to get married. For example, let’s say an Illinois couple drove up to Minnesota to get hitched. While they are legally married in the state of Minnesota, they aren’t viewed in the same light when they come back to Illinois. This can cause numerous headaches during the divorce. Since Illinois doesn’t view them as a married couple, they can’t process the divorce.

While it is encouraging that the Supreme Court recently overturned the Defense of Marriage Act (DOMA) that made for some changes and inroads on the federal level, it still did not address issues faced by same-sex couples on a state level. Same-sex couples may still have trouble collecting federal benefits even after the DOMA defeat because they are still living in a state where as of yet, gay marriage is not legal. Illinois state laws still need to catch up with the federal laws.

Pitfall #2 – Your assets are co-mingled, but still not legally joint.

Sullivan: While they aren’t right for everybody, a prenuptial agreement should at least be considered by all parties looking to wed. Don’t view it as a symbol of ‘lack of trust’. You can even draft up an agreement that expires after a certain amount of time, or one that is only valid when certain circumstances are met. At a minimum, have a discussion with your significant other. This is especially important to consider if you and your partner have been together for a long time. A prenup can clearly define pre- and post-marriage property, which would only speed up divorce proceedings in the event that the couple decided to split.

Pitfall #3 – You cannot agree on custody.

Sullivan: Custody agreements can cause headaches for same-sex couples for a variety of reasons. First, many same-sex couples decide to adopt, which adds an extra wrinkle to the custody determination, and second, very few judges have a wealth of experience when it comes to determining child custody in a same-sex divorce. Family Law attorneys and judges always want to ensure they make the best decision for the sake of the child, and that can be hard to do, regardless of whether the couple is same-sex or opposite-sex.

Pitfall #4 – You can’t find an attorney, financial advisor, or marriage counselor with expertise in same-sex marriage and divorce.  

Sullivan: This builds off the last point, and I believe it is one of the most important things to consider.

As laws continue to change for the better, same-sex couples are entitled to more benefits, tax breaks, etc. Attorneys are attempting to decipher what all the new legislation means, because they want to provide the best services possible to their clients. As much as they try to keep up with the new laws, not all attorneys are qualified or even willing to take the extra time necessary to deal with issues that are unique to same-sex couples. Same-sex couples should find an attorney that is sensitive their needs and willing to tailor their practice to the particular challenges faced by this new area of law.

This is particularly true in Illinois where the law now allows for civil unions but not legalized same-sex marriage. I’m excited to see where the legislation goes in the future.

Related source: CNBC

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Illinois Man Flees to Europe to Get Out of Paying His Ex-Wife

A former Chicago Board of Trade Chairman would rather leave the country than pay his ex-wife $18 million stemming from a ruling by the judge who presided over the couple’s divorce case.

Patrick Arbor, 76, is thought to have flown in Europe in lieu of making the payments to his ex-wife, Antoinette Vigilante. Arbor has been less than cooperative throughout the divorce proceedings, as he has repeatedly ignored the judge’s orders. The Cook County judge issued a bench warrant that calls for Arbor to be jailed until he pays nearly $300,000 to his ex wife stemming from a separate ruling.

Arbor was chairman of the Chicago Board of Trade from 1993 to 1999. His ex-wife filed for divorce last year, and the final judgment was issued Tuesday.

Reuters reached Arbor on his cellphone over the weekend, but he declined to speak to his exact whereabouts.

“I can’t talk about [the ruling],” he said. “I’m in Europe. I’m an Italian citizen.”

Sean Sullivan comments

I have handled numerous family law cases, and it typically takes a lot for a domestic relations judge to order someone to jail for contempt. However, they certainly have the power to do so. It typically only occurs in cases where one party to the lawsuit has consistently refused to abide by any rulings or orders of the judge.

My guess is there is more to this story than is being reported here. That said, jail is a possibility even in civil cases. I would never advise any of my clients to willfully disobey a judge’s order and risk infuriating the judge to the point that they would hold you in contempt, wherein the penalty could very well be jail.

Related source: Chicago Tribune

Changes Would Impact Family Law in Illinois

This post was written by Sean Sullivan, head of the Family Law department at Appelman & Associates. Sean is committed to providing his clients with the best representation in a variety of civil matters. For more information about Sean, check out his bio or give him a call at (630) 717-7801.

House Bill 1452 is up for consideration in Springfield in this fall’s veto session. It is the culmination of decades-long suggestions by practicing family law attorneys to enact changes to Illinois Law to reflect the changing culture of today’s families. If this bill passes, there are several significant points of law that will greatly impact the practice of family law going forward, including:

• Grounds for Divorce – This is one of the most significant changes that this bill encompasses. No longer would there be any grounds for divorce other than irreconcilable differences. Gone are the days when one party could gain an upper hand against the other by alleging their spouse is at “fault” for causing the divorce through infidelity or by inflicting mental cruelty. Currently, irreconcilable differences is really the only reason cited when filing for dissolution of marriage – this bill would simply incorporate a law that has, for the most part, already been enacted.

• Custody or Visitation – These terms would be thrown out the window and replaced by the term “parental responsibilities.” This is simply a change in terminology. The concept of custody and visitation will remain the same.

• Presumption of Residential Parenting Time – Unless proven otherwise, as a matter of law, both parents will be allocated no less than a 35% split in parenting time.

• Parenting Plan – Divorcing spouses with children will now be required to file with the court a copy of a parenting plan within 90 days of filing for a divorce. This is a huge change from the current state of affairs in which joint parenting agreements are always required to be filed, but not within any specific timed deadline. This will force divorcing spouses and their lawyers to work together quicker to resolve parenting issues.

These are only some of the major changes being proposed by House Bill 1452. This list only highlights the issues that would impact the majority of typical divorce cases we handle at Appelman and Associates LLC. There are still many other changes that are being proposed that may apply to your divorce case.

Family law is growing more complex than ever, and the law may be changing. If you are contemplating a divorce or need help with child custody issues, you should consult us so that we can help you navigate through your divorce.

New Law Allows Illinois Adoptees to Obtain Original Birth Certificates

A monumental change to Illinois legislation now allows adult adoptees to obtain a copy of their original birth certificate.

Similar laws are going into effect in other states, and proponents of the bill say it will make it easier for adoptees to reconnect with blood relatives. Those opposed to the bill say it will now be harder for parents who don’t want to be found to stay hidden.

Looking at the Law

Before the change in legislation, it was next to impossible for adoptees to dig up information on their birth parents. In most adoption cases, the hospital seals the birth certificate when the child is placed up for adoption. Once a family adopts the child, a new certificate is issued with the adoptive parents’ names listed on it. The hospital maintains the original birth certificate for their records, but they cite privacy and HIPPA regulations when adoptees request an original copy. Under the new law, an adult over the age of 21 can now acquire their birth information.

The bill was written by Illinois Democratic State Rep. Sara Feigenholtz, who said she created the legislation after hearing personal stories from many adoptees.

“I passed this law because I felt the pain and was approached by many other adoptees in Illinois who had no idea how to get any information,” said Feigenholtz. “(There were) a lot of adoptive parents who had children who were adopted who wanted to get medical information about the children they adopted, people who wanted to reconnect to get life-saving medical information were unable to do anything, and why?”

Not All Agree

Although the new law can be used to reference past family medical history, and in some cases, save a life, not everyone believes the measure should have been passed. Those who oppose the bill believe it is an invasion of privacy for the birth parents. Others, like Adam Pertman, executive director of the Adoption Institute, said some birth parents are opposed to the bill because they could soon be confronted with the past.

“What people are concerned about, I think, is the knock at the door. That somebody who doesn’t want intrusion on their lives is suddenly going to have to have a relationship with a child they relinquish,” said Pertman.

Family Law Attorney Sean Sullivan comments

This change in the birth certificate legislation won’t really affect the adoption process as it’s currently constituted. Where I see a greater effect is in the emotional processing of someone’s decision to place a child up for an adoption.

The reasoning behind the laws forbidding the reissuance of the original birth certificate was to a make a difficult decision on the part of the biological parents somewhat easier by providing them some anonymity. By reissuing a new birth certificate bearing the names of the adoptive parents, the original parents could remain out of the equation.

Clearly there is a rational argument to be made that the adopted children may need to know their biological parent’s medical histories in case of emergency or serious illness. But, by removing the protection of anonymity from the birth certificate, there may be a shift in the number of children placed up for adoption. Some parents may not place their children up for adoption if they know their child could eventually track them down, even if placing the child in adoption services is what’s best for the kid. We never want to discourage someone from an option that would best benefit the child. Perhaps a compromise could be made in the process.

I would propose that we add a section of medical history to be filled out by the biological parent as part of them terminating their rights to the child. We could make this past medical history questionnaire discoverable to the adopted child without revealing the names of the biological parents. The birth certificate could then be changed to reflect the new parents. I think this is a good solution to preserve the privacy and anonymity of the biological parents, but still allow the adopted child access to the important medical information they may need.

Related source: CBS News