In re Marriage of Werhun, 2025 IL App (3d) 250201-U

Summary

Case Summary: In re Marriage of Werhun, 2025 IL App (3d) 250201-U - The Third District's reversal on income imputation in Werhun confirms that trial courts abuse their discretion when they fail to explicitly address imputation for a spouse with documented prior earning capacity who reports minimal income during dissolution. The remand on dissipation claims underscores that vague judicial findings without transaction-level tracing and specific dollar calculations cannot survive appellate review—forcing practitioners to build forensic accounting records and demand written specificity at trial to preserve meaningful relief.

The opposing counsel is already on the back foot—and if you're litigating a high-asset divorce in Illinois, the Third District just handed you a tactical blueprint worth studying.

In re Marriage of Werhun, 2025 IL App (3d) 250201-U, is a Rule 23 order that won't make binding precedent, but make no mistake: it exposes exactly where trial courts fumble and where prepared counsel capitalizes. The appellate court affirmed in part, reversed in part, and remanded—which means someone's lawyer didn't finish the job, and someone else's lawyer is about to get a second bite.

Let me break down what this case teaches us about parenting time restrictions, cohabitation claims, income imputation, and dissipation—and how you weaponize each of these in your next filing.

Parenting Time Restrictions: Your Evidence Better Show Impairment, Not Just Consumption

Erin Werhun wanted Jeffrey's parenting time restricted based on his alcohol use. The trial court refused. The appellate court affirmed that refusal.

Here's where most attorneys lose this fight before it starts: they conflate use with impairment. Section 603.10 of the Illinois Marriage and Dissolution of Marriage Act permits restrictions on parenting time when a parent's conduct—including substance use—interferes with the child's physical, mental, or emotional health. The statute doesn't care that your opposing party drinks. It cares whether that drinking impairs their caretaking.

In Werhun, the Guardian ad Litem testified that supervised visits went well, observed no impairment during those visits, and recommended removing restrictions as long as SoberLink monitoring continued for extended overnights. That testimony sank the restriction argument.

Strategic Takeaway

If you're pursuing parenting time restrictions based on substance use, you need an evidentiary record that ties consumption to actual caretaking failures. That means:


    
Documented incidents where the parent was impaired while responsible for the child
    
Medical records, police reports, or school records reflecting the child's exposure
    
Expert testimony—not just a GAL's general observations
    
Failed drug or alcohol tests contemporaneous with parenting time


Relying on a GAL's recommendation cuts both ways. If the GAL says the visits are fine, you've just armed your opponent. Control the narrative by building your own evidentiary foundation before the GAL even interviews your client.

Cohabitation: Social Media Posts Won't Cut It

Erin alleged Jeffrey was cohabitating with a third party, which would have affected maintenance obligations. The trial court found no cohabitation. The appellate court affirmed.

The evidence? Social media posts and occasional sightings. That's not cohabitation under Illinois law—that's circumstantial noise.

Cohabitation requires a de facto husband-wife relationship: shared residence, financial interdependence, sexual intimacy, and domestic integration. Courts look for patterns of conduct, not Instagram stories.

Strategic Takeaway

If you're alleging cohabitation to terminate or reduce maintenance, you need concrete proof:


    
Utility bills, lease agreements, or mortgage documents showing shared residence
    
Bank records demonstrating financial interdependence (joint accounts, shared expenses)
    
Testimony from witnesses with direct knowledge of the living arrangement
    
Private investigator reports documenting habitual overnight stays over an extended period


Screenshots of your ex at a restaurant with their new partner prove nothing except that they eat dinner. Build a surveillance and documentation strategy before you file the motion.

Income Imputation: The Trial Court's Failure Is Your Appellate Win

This is where the appellate court reversed—and where prepared counsel can devastate an underemployed opposing party.

Jeffrey's reported income was low. But his prior earnings history—consulting work, real estate activity—told a different story. The trial court failed to impute income. The Third District called that an abuse of discretion.

Under Illinois law, courts may impute income when a party is voluntarily unemployed or underemployed. The analysis considers earning capacity, employment history, education, and available opportunities. When a spouse with demonstrated earning power suddenly reports minimal income during dissolution proceedings, the court is required to address imputation explicitly.

Strategic Takeaway

If your opposing party is sandbagging income, you must build an imputation case with:


    
Historical tax returns showing prior earning capacity
    
Business records, 1099s, and K-1s from consulting or investment activity
    
Evidence of lifestyle inconsistent with reported income (travel, purchases, real estate)
    
Expert vocational testimony on earning capacity in their field


Then force the trial court's hand. File a motion specifically requesting income imputation with supporting documentation. If the court fails to address it, you've preserved the issue for appeal—and Werhun shows the Third District will reverse.

And here's the cross-brand angle your opponent probably isn't thinking about: digital forensics. If the opposing party claims they're not working, but their devices show business communications, invoicing activity, or client meetings, that's discoverable. Cyber negligence—failing to secure or delete incriminating data—becomes leverage in your financial discovery. Subpoena cloud storage, email accounts, and payment platforms. The metadata doesn't lie.

Dissipation: If You Can't Trace It, You Can't Prove It

Both parties in Werhun alleged substantial dissipation by the other. The trial court made findings, but the appellate court found the record lacked the specificity and tracing required for meaningful review. Result: remand for detailed findings and calculations.

Dissipation claims require proving that marital assets were used for purposes unrelated to the marriage after the marriage began breaking down. You must identify specific expenditures, trace them to marital funds, and demonstrate they served no legitimate marital purpose.

Strategic Takeaway

Dissipation is a forensic accounting exercise, not a narrative complaint. You need:


    
Bank and credit card statements showing the specific transactions
    
Receipts, invoices, and records proving what the money purchased
    
A clear timeline establishing when the marriage irretrievably broke down
    
Expert testimony from a forensic accountant tracing funds and calculating totals


Then demand written findings from the trial court. If the court issues vague conclusions without specific dollar amounts and transaction-level analysis, you've either lost on appeal or—like in Werhun—created grounds for remand that prolongs litigation and increases costs for everyone.

Document everything. Preserve everything. And if your opposing party's financial records have gaps, subpoena their digital accounts. Cloud-based accounting software, Venmo transactions, cryptocurrency wallets—all discoverable, all traceable, all devastating when they contradict sworn financial disclosures.

The Bottom Line: Preparation Wins, Assumptions Lose

In re Marriage of Werhun isn't a landmark case. It's a cautionary tale about what happens when counsel assumes the trial court will connect the dots. The trial court didn't impute income when it should have. The appellate court reversed. The trial court's dissipation findings were too vague. The appellate court remanded.

Your job is to build a record so airtight that the trial court has no choice but to rule in your favor—and if it doesn't, you've preserved every issue for appeal.

That means:


    
Evidentiary foundations, not assumptions
    
Expert witnesses, not just party testimony
    
Specific written findings, not general conclusions
    
Digital discovery that exposes what your opponent thinks they've hidden


The judge already knows when one side came prepared and the other side came hoping. Don't be the attorney who hopes.

Book Your Strategy Session Now

If you're facing a high-asset dissolution in Illinois and your opposing party is hiding income, alleging dissipation without proof, or fighting over parenting time with weak evidence—your window to control this case is closing.

Schedule a consultation with our team today. We build cases that survive appellate scrutiny and break down opposing parties who think they can outlast you. The opposition is already losing. Let's finish it.

Full Opinion (PDF): Download the full opinion

Written by Jonathan D. Steele

Chicago divorce attorney with cybersecurity certifications (Security+, CEH, ISC2). Illinois Super Lawyers Rising Star 2016-2025.

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