Matrimonial Law in Illinois in The 50s
Matrimonial Law in Illinois in The 50s
Volume 10
Issue 2 Spring-Summer 1961: Symposium - A Article 14
Decade of Developments in Illinois Law
1950-1960
Meyer Weinberg
Recommended Citation
Irving S. Friedman & Meyer Weinberg, Matrimonial Law in Illinois in the '50's, 10 DePaul L. Rev. 445 (1961)
Available at: https://via.library.depaul.edu/law-review/vol10/iss2/14
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FAMILY LAW
All happy families resemble one another; every unhappy
family is unhappy in its own fashion.-LEv NIKoLAEvICH TOL-
STOI, Anna Karenina,Part I, ch. I.
MR. FRIEDMAN, a member of the Illinois Bar, received his LL.B. from John Marshall
Law School. He is a member of both the Illinois Bar Matrimonial Committee and the
Chicago Bar Association Committee on Matrimonial Law. Mr. Friedman is a partner
of the firm of Sol R. Friedman & I. S. Friedman,Chicago.
MR. WEINBERG, a member of the Illinois Bar, is the author of the book ILLINOIS DI-
VORCE, SEPARATE MAINTENANCE & ANNULMENT, and also of the 1959 CUMULATIVE SuP-
PLEMENT TO KEEZER ON THE LAW OF MARRIAGE AND DIVORCE. He is the Chairmanof the
Executive Committee of the Family Law Section of the Illinois State Bar Association
and the Editor of the ISBA Family Law Bulletin. Mr. Weinberg received his LL.B.
from De Paul University, and is now a partner of the firm of Weinberg & Green-
burg, Chicago.
DE PAUL LAW REVIEW
given any rights of visitation. Over her objection, the court ordered
the father to pay child support and granted him visitation rights. On
her appeal, the Appellate Court pointed out that courts of equity
assume jurisdiction to grant annulments, and have power to provide
for the care of the children involved.
DIVORCE AND SEPARATE MAINTENANCE
cases, to a ninety-five per cent degree, had a built-in base for "waiver,"
and these were properly allowed. The "cool-off" laws became a bur-
den and detriment to justice. Adding to these burdens, the Illinois
Appellate Court, First District, in Van Dam v. Van Dam 9 decided in
effect that the "waiver" was jurisdictional. This put thousands of
prior decrees with waivers in jeopardy by making them reviewable
at any time, even years hence. Fortunately, the Illinois Supreme Court
reversed the Van Dam case,2° and held the waiver discretionary; at
least this legal quagmire was avoided.
There is a strong movement to repeal the "cool-off" laws outright;
another view advocates repealing them but would add an optional
praecipe procedure. In any event, the "cool-off" laws will hardly
survive the 1961 Legislative Session.
EXPANSION OF JURISDICTION OVER CHILDREN
In Hilliard v. 39
Hilliard,
the wife was granted a decree of separate
maintenance based on desertion in 1947. The husband made bona fide
attempts to reconcile in 1955, but they were spurned. In 1957, the
husband sued for divorce based on refusal of offer of reconciliation.
A divorce was granted. The court reversed and stated:
In the present case the separate maintenance decree of October 1952, estab-
lished that the wife, as of that date, was living apart from her husband without
her fault. This judicial determination of itself (apart from the finding in the
decree, which we need not consider, that the husband's desertion was willful
and had dated from 1947) gave her grounds for divorce for reason of deser-
tion, if the desertion persisted for a year after the entry of the decree. ...
[Citations omitted.] It continued for more than two years thereafter; it was
36 Id. at 129, 164 N.E.2d at 524.
37 17 Il. App.2d 404,150 N.E.2d 394 (1958).
38 16 M. App.2d 286, 148 N.E.2d 327 (1958).
39 25 Ill. App.2d 468, 167 N.E.2d 451 (1960).
DE PAUL LAW REVIEW
not until February, 1955, that the husband made his initial overture for the
resumption of the marital relationship. By this time it was too late; the deser-
tion, being for over one year, had ripened into the statutory ground for di-
vorce. At this point the wife, as the aggrieved party, had the right to decide
if she wanted to forgive the wrong she had suffered. Her refusal to accept her
husband's belated offers of reconciliation, even though they were made in
good faith, did not make her the deserter nor cure his desertion. While a de-
serted spouse must keep open the door for the possible return of a penitent
deserter, it is not necessary that this be done forever.40
JURY DEMAND
The Illinois statutes provide for blood tests in civil actions in which
45
paternity is a relevant fact; the court may order the blood tests.
Procedure is specific and detailed in these statutes.
Illinois Supreme Court rule 22 provides in part: "In any civil action,
the court may hold a pretrial conference. ' 4 This furnishes a functional
and salubrious procedure for matrimonial litigation. Pre-trial confer-
ence could be the situs of many reconciliations, if expert attention
were given. In the alternative, related problems of support and prop-
erty rights could be adjusted with much saving in court time. Un-
45 ILL. REV. STAT. ch. 106J, §§ 1-5 (1959).
46 ILL. REV. STAT. ch. 110, § 54.1 (1951). (Emphasis added.)
47 ILL. REV. STAT. ch. 51, § 5.1 (1959). (Emphasis added.) For a full discussion of the
physician-patent privilege see Cleary, Development in Evidence-1950-1960, 10 DE
PAULL. REV. 422 (1961).
48 ILL. SuP. CT. R. 22.
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The Divorce Act was amended in 1959 to give the court power
to compel a party to execute an assignment of wages to secure the
payment of child support.49
POST-DECRETAL RELIEF UNDER SECTION 72 OF THE CIVIL
PRACTICE ACT, AND PROPERTY AGREEMENTS
The court held that such delay and incongruity is inconsistent with
the liberal aims of the Civil Practice Act. The James case is also impor-
tant for the reason that it is the first case which set aside a property
settlement in a divorce action in Illinois because it was unfair and in-
equitable.
A recent case in which the point of fairness of a property settlement
was raised is Guyton v. Guyton.5 4 There, the parties entered into an
oral agreement settling their property rights on the day the case came
up for trial. Plaintiff-wife proceeded to hearing and, in the course of
the hearing, the terms of the agreement were specified and assented to
by the defendant and his attorney. Subsequently, the defendant sought
to prevent the entry of the decree on an unsupported assertion that the
agreement was unfair. The court entered the decree despite this conten-
tion. Thereafter, the defendant filed a petition to vacate the decree,
alleging among other reasons, the fact that the agreement involved the
transfer of real estate, and that not having been in writing, it was in vio-
lation of the Statute of Frauds. The Supreme Court held that where
parties to a divorce proceeding orally contract in respect to alimony and
property rights arising out of the marriage relationship, and the pro-
visions agreed to are incorporated in the decree, the contract becomes
merged in the decree, and the rights of the parties are thereafter based
upon the decree; and where the decree orders the defendant to con-
vey the family home to the plaintiff pursuant to such agreement, the
requirement of the Statute of Frauds that contracts concerning real
estate be in writing has no application.
INTER-STATE ENFORCEMENT OF SUPPORT ORDERS
was not entitled to enforcement. All doubts were laid to rest by the
forthright holding in the Light case. The Supreme Court decided that
the Missouri decree was entitled to full faith and credit as to future
installments of alimony, and that the Illinois court had the power to
modify that decree.
DIVISIBLE DIVORCE