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 - In re Marriage of Werhun reinforces that Illinois appellate courts will reverse a trial court's failure to explicitly engage with income imputation when a party's post-separation earnings sharply diverge from documented historical capacity, making the trial court's silence on the question itself an abuse of discretion. The case equally underscores that dissipation findings lacking dollar-specific tracing and itemized judicial analysis will be remanded, meaning practitioners who fail to demand granular written findings at trial are effectively building in a second round of litigation at their client's expense.

The opposing counsel is already on the back foot. If you walked into my office today holding a copy of In re Marriage of Werhun, 2025 IL App (3d) 250201-U, I'd tell you what I tell every high-net-worth client staring down a contested dissolution: this case is a masterclass in what happens when preparation meets sloppiness — and sloppiness loses.

The Third District just handed down a Rule 23 order that should be required reading for every family law practitioner in Cook, DuPage, and the collar counties. Not because it breaks new ground — it doesn't — but because it exposes, with surgical precision, the five pressure points where cases collapse when lawyers get lazy. Let me walk you through each one, and then let me tell you exactly how we exploit them.

1. Parenting Time Restrictions for Substance Use: The GAL Testimony Problem

The judge already knows that under 750 ILCS 5/603.10, you cannot restrict parenting time based on alcohol use unless you demonstrate that the use actually interferes with caretaking ability. Erin Werhun tried. She lost. Here's why.

The Guardian Ad Litem monitored supervised visits, testified they went well, observed zero impairment, and recommended removing restrictions — conditioned on SoberLink remote alcohol monitoring for extended overnights. The appellate court found the trial court's refusal to further restrict Jeffrey's time was not against the manifest weight of the evidence.

Read that again. The mother alleged a substance abuse problem. The court-appointed professional said the visits were fine. Case closed.

The strategic takeaway: If you're the petitioning parent seeking restrictions, you need more than allegations. You need contemporaneous medical records. You need documented instances of impairment during caretaking — not at a bar on a Saturday night without the children. You need toxicology. You need expert testimony connecting the substance use to a demonstrable risk to the child. Relying on a GAL recommendation alone is a coin flip, and in Werhun, the coin landed wrong for the moving party.

And if you're the parent defending against these allegations? Deploy technology offensively. SoberLink, continuous alcohol monitoring, GPS-enabled check-in apps — these aren't concessions of guilt. They're evidence factories. Every clean test is another brick in your wall. This is where tech meets family law, and the smart litigator weaponizes compliance data before the other side even understands what they're looking at.

2. Cohabitation Claims: Social Media Is Not Evidence — It's Noise

Erin argued Jeffrey was cohabitating with a third party, which would have implications for maintenance. The trial court disagreed. The appellate court affirmed, finding that social media posts and occasional sightings did not establish a conjugal relationship under the manifest weight standard.

This is where I see opposing counsel embarrass themselves repeatedly. They walk in with a stack of Instagram screenshots and expect the judge to terminate maintenance. That is not how this works.

What conjugal cohabitation actually requires:

• Shared residence — not occasional sleepovers, but a demonstrable living arrangement
• Financial interdependence — joint accounts, shared expenses, commingled assets
• Habitual domestic and intimate conduct consistent with a marriage-like relationship

If you're bringing a cohabitation claim, you need forensic-level proof. Bank records showing shared payments. Utility bills. Lease agreements or mortgage documents. Witness testimony from neighbors with specific, repeated observations. Digital forensics on shared devices or accounts — and yes, this is where cyber investigation intersects family law. Metadata on shared photo libraries, location data from devices, synchronized calendar entries — all of it admissible when properly obtained, all of it devastating when the other side thought they were being discreet.

If your cohabitation case rests on "they looked cozy on Facebook," you've already lost. File that motion with evidence or don't file it at all.

3. Imputation of Income: The Appellate Court Just Gave You a Weapon

This is the holding that matters most for high-net-worth practitioners. The appellate court reversed the trial court's failure to impute income to Jeffrey, finding it was an abuse of discretion.

Jeffrey had a documented earnings history — consulting work, real estate activity — and post-separation financial behavior that contradicted his claimed low income. The trial court failed to address imputation explicitly. The Third District said that's not acceptable and remanded for recalculation of support and financial allocation.

Translation for the courtroom: If your opposing party suddenly "earns" a fraction of their historical income after separation, the court must engage with the imputation question. If it doesn't, you have appellate ammunition. And if you're the one whose income is being scrutinized, understand that your tax returns from the last five to seven years are a roadmap the other side will use to bury you.

Here's the practice directive: build your imputation case with layers.

• Layer one: Historical tax returns and W-2s/1099s establishing earning capacity
• Layer two: Business records, bank deposits, and financial statements showing actual cash flow that diverges from reported income
• Layer three: Vocational expert testimony establishing what the party could earn given their credentials, experience, and market conditions
• Layer four: Digital footprint analysis — LinkedIn activity, business registrations, domain name ownership, social media posts about deals closed or projects completed

That fourth layer is where most attorneys stop paying attention, and it's where I start winning. A party who claims they can't find work but maintains an active consulting website, posts about client engagements, or registers new LLCs is handing you impeachment material on a silver platter. Cyber due diligence isn't optional in high-asset cases. It's the baseline.

4. Marital Estate Valuation: The Manifest Weight Shield

The appellate court upheld the trial court's valuation of Jeffrey's contributions to the marital estate, finding it was not against the manifest weight of the evidence. This is the standard that protects trial court discretion — and it's extraordinarily difficult to overcome on appeal.

The lesson here is blunt: you win or lose valuation battles at trial, not on appeal. If you don't present competing appraisals, forensic accounting reports, and expert testimony at the trial level, you will not get a second bite. The manifest weight standard means the appellate court defers to the trial judge's credibility determinations and factual findings unless no reasonable person could have reached the same conclusion.

For high-net-worth dissolutions involving business interests, real estate portfolios, or complex asset structures, this means your forensic accountant and your valuation expert need to be retained early, prepared thoroughly, and presented with precision. The trial record is everything. If it's not in the record, it doesn't exist.

5. Dissipation: The Record Failure That Forces Remand

Both parties in Werhun alleged significant dissipation by the other. The appellate court found the trial court's findings lacked the specificity and tracing required for meaningful appellate review and remanded for detailed findings and calculations.

This is a procedural failure that costs clients real money — in additional attorney fees, in delayed resolution, and in the uncertainty of a second proceeding. It is entirely preventable.

The dissipation playbook:

1. Trace every dollar. Forensic accounting is not a luxury — it's a necessity. Account-by-account ledgers showing withdrawals, expenditures, and the purpose (or lack thereof) of each transaction.
2. Establish the timeline. Dissipation claims require showing that the spending occurred after the marriage began breaking down. Pin down the date with specificity — filing dates, separation dates, documented conflicts.
3. Demand specific findings. At trial, request that the court enter detailed written findings on each alleged dissipation — the amount, the date range, the evidence supporting or refuting it, and the allocation consequence. If the court doesn't do this, you're building in appellate risk.
4. Preserve the record. Receipts, bank statements, credit card records, Venmo and Zelle transaction histories, cryptocurrency wallet activity — all of it. Digital payment platforms are the new battleground for dissipation tracing, and most practitioners are still treating them as afterthoughts.

The Werhun remand is a cautionary tale. If your dissipation evidence is a pile of generalized allegations without granular tracing, the court can't make findings — and the appellate court will send it back. That's another year of litigation. That's another six figures in fees. That's avoidable.

The Integrated Strategy: Where Cyber Meets Family Law

Every issue in Werhun — parenting time, cohabitation, income imputation, valuation, dissipation — has a digital evidence component that most family law practitioners ignore or underutilize. SoberLink data for parenting disputes. Social media forensics for cohabitation. Digital business footprints for income imputation. Electronic financial records for dissipation tracing.

Cyber negligence in discovery is leverage. When the opposing party fails to preserve text messages, deletes financial apps, or "forgets" about a cryptocurrency account, that's not just a discovery violation — it's an adverse inference waiting to happen. Spoliation motions in family court are becoming more common, and judges are paying attention.

If your attorney isn't running digital asset searches, isn't issuing litigation holds on electronic data, and isn't subpoenaing platform records where appropriate, you're leaving money and custody outcomes on the table.

What This Means for Your Case

Werhun confirms what we already know: Illinois appellate courts will defer to trial judges on factual findings but will reverse when the trial court fails to engage with the law — particularly on income imputation — and will remand when the record is too thin for review. The party that builds the better record wins. The party that controls the digital evidence wins bigger.

If you're facing a high-asset dissolution in Illinois — particularly in DuPage, Cook, Lake, or the collar counties — and your current strategy doesn't include forensic accounting, digital evidence collection, and a litigation plan that anticipates appellate review from day one, you are already behind.

Your opposition just blinked. Now is the time to press the advantage.

Book a consultation with our team. We don't wait for the other side to set the tempo. We dictate it.

Full Opinion (PDF): Download the full opinion

Written by Jonathan D. Steele

Chicago divorce attorney with cybersecurity certifications (Security+, ISC2 CC, Google Cybersecurity Professional Certificate). Illinois Super Lawyers Rising Star 2016-2025.

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