In re Marriage of Ito, 2025 IL App (3d) 240641-U

The opposing counsel is already on the back foot—and they don't even realize it yet.

If you're handling high-net-worth divorce modifications in Illinois, the Third District just handed you a procedural roadmap that exposes sloppy defense tactics. In re Marriage of Ito isn't precedential, but it's a masterclass in how trial courts get dismissals wrong—and how you can exploit that when your client's financial circumstances have genuinely changed.

Your opposition filed a 2-615 motion thinking they'd shut down your modification request before discovery even started. They thought wrong.

The Setup: When Imputed Income Meets Real-World Disability

Here's the scenario that plays out in courtrooms across Cook, DuPage, and Lake Counties more often than most practitioners admit: A marital settlement agreement imputes income to the lower-earning spouse at dissolution. Years pass. That spouse's circumstances deteriorate—disability, job loss, market shifts. They file to modify child support.

The paying spouse's attorney files a motion to dismiss, arguing the MSA's imputed income figure bars any modification claim. The trial court grants it.

That's exactly what happened in Ito. And the Third District reversed because the trial court committed a fundamental procedural error that I see defense counsel make constantly: they confused a pleading sufficiency challenge with a merits determination.

The Procedural Weapon Your Opposition Keeps Misusing

A 2-615 motion tests one thing only: whether the pleading, taken as true with all reasonable inferences, states a legally cognizable claim. It does not—and this is where opposing counsel repeatedly overreaches—permit the court to weigh evidence, resolve factual disputes, or determine the ultimate merits.

The Ito court cited established Illinois authority: dismissal under 2-615 is appropriate only when no set of facts consistent with the pleadings would entitle the movant to relief. That's an extraordinarily high bar for the defense to clear.

Nina Ito alleged she was unemployed, no longer receiving disability benefits, and receiving materially less income than the amount imputed to her at dissolution. Those allegations, accepted as true, could constitute the substantial change in financial circumstances required under Illinois modification standards.

The trial court improperly considered extraneous facts and substantive merits arguments. The appellate court corrected that error and remanded for litigation on the merits.

Strategic Implications: Offense and Defense

If You're Seeking Modification

Plead with surgical precision. The Ito decision rewards specificity. Your motion should include:

• Exact dates of employment termination or disability onset
• Specific benefits applied for, received, or denied—with timeline
• Current actual income from all sources, documented
• Medical treatment history relevant to earning capacity
• Clear articulation of how circumstances have materially changed since the original order

Vague allegations invite dismissal. Detailed factual pleading survives it.

If You're Defending Against Modification

Stop reaching for the wrong procedural tool. If your defense relies on documentary evidence outside the pleadings—the MSA itself, financial records, prior court findings—you need a 2-619 motion, not a 2-615. The distinction matters because:

• A 2-615 motion is limited to the four corners of the pleading
• A 2-619 motion permits affirmative defenses and matters dehors the record
• Choosing wrong exposes your client to reversal and extended litigation costs

If the MSA contains clear, unambiguous language establishing imputed income as a fixed bargained term immune from modification, that's a 2-619 argument supported by the contract itself—not a 2-615 pleading deficiency challenge.

The MSA Drafting Problem Nobody Wants to Acknowledge

The Ito court noted the MSA contained "contradictory language" regarding imputed income. This is a drafting failure that creates years of post-judgment litigation.

When you're negotiating settlement agreements involving income imputation, resolve the ambiguity at the drafting stage:

• Option A: The imputed income figure represents a bargained-for term that both parties agree shall not be subject to modification absent extraordinary circumstances specifically enumerated in the agreement.
• Option B: The imputed income figure represents the court's or parties' evidentiary determination at the time of dissolution and remains subject to modification upon showing of substantial change in circumstances under applicable Illinois law.

Pick one. Document the parties' intent explicitly. Eliminate the ambiguity that feeds appellate reversals.

The Technology Angle You're Probably Missing

In modification cases involving claimed disability or unemployment, digital evidence is decisive. Your client's social media activity, email metadata, LinkedIn profile updates, and electronic financial records tell a story that pleadings alone cannot.

If you're defending against a modification claim, discovery into the movant's digital footprint often reveals inconsistencies between pleaded allegations and actual conduct. That evidence doesn't help you at the 2-615 stage—but it destroys credibility at the evidentiary hearing.

If you're seeking modification, assume your digital life is under surveillance from the moment you file. Advise clients accordingly. The Instagram post showing your client at a charity gala will be Exhibit A at the hearing.

The Urgency Calculation

Every month you delay filing a well-pleaded modification motion is a month of support calculated on outdated circumstances. Every month you delay responding to a modification motion with the correct procedural defense is a month closer to an adverse ruling you could have prevented.

The Ito reversal demonstrates that Illinois appellate courts will correct trial court errors—but that correction took time, money, and uncertainty that proper procedure would have avoided.

The Bottom Line

The Third District just reminded every family law practitioner in Illinois that procedural precision matters. 2-615 motions are not magic wands that make modification claims disappear. They're narrow tools with narrow applications, and misusing them creates appellate exposure.

If you're litigating child support modifications in high-net-worth cases—whether seeking or defending—the stakes demand counsel who understands both the procedural landscape and the substantive law governing modification.

Your opposition may have already made the wrong procedural choice. That's their problem. Make sure it's not yours.

If you're facing a child support modification dispute in Illinois and need counsel who treats procedural strategy as seriously as substantive advocacy, schedule a consultation now. The other side is already behind. Let's keep them there.