In re The Marriage of Bernay

Summary

Case Summary: In re The Marriage of Bernay - A wealthy ex-husband's repeated attempts to terminate a $3,600/month permanent maintenance order backfired spectacularly when an Illinois appellate court not only denied his petition—finding his own growing portfolio destroyed any claim of hardship—but also upheld a $55,000 fee contribution order forcing him to fund his ex-wife's legal defense. The Bernay III decision sends a stark warning to high-net-worth payors and their attorneys: filing a termination petition while your client's assets have actually increased is a losing strategy that risks costly sanctions, and courts will reject arguments that a dependent spouse must liquidate her home or sell inherited property to relieve the obligation.

The opposing counsel in your maintenance termination case is already on the back foot — they just don't know it yet. If you're representing a high-net-worth payor who walked into your office convinced that his ex-wife's inherited artwork and Colorado real estate are a golden ticket to terminating permanent maintenance, sit down and read every word of this analysis before you file that petition. Because the Second District just handed the family law bar a masterclass in how not to seek termination of permanent maintenance — and the lessons cut deep.

The Bernay Saga: Three Appeals, One Immovable Maintenance Order

The judge already knows the history here, and so should you. In re The Marriage of Bernay has generated three separate appeals over a $3,600/month permanent maintenance obligation that has survived every challenge thrown at it since 2006. The most recent decision — Bernay III — is an unpublished Rule 23(b) order from the Second District, which means its precedential value is limited under Rule 23(e)(1). But its strategic value to practitioners on both sides of the maintenance fight is enormous.

Here's the core fact pattern that should make every payor's attorney pause before filing a termination petition: Jerry Bernay's monthly income sits at approximately $15,200 from Social Security and IRA distributions. His total assets clock in around $5.7 million, including three unencumbered properties worth a combined $1.8 million. Lynn Bernay, meanwhile, pulls in roughly $1,600/month in Social Security plus approximately $3,000 net from maintenance. Her liquid assets total about $8,000. Her primary asset is a mortgaged home in Boulder, Colorado — worth approximately $920,000 with $189,000 still owed.

Both parties are now in their 70s. Both retired, and the court found both retirements were in good faith. And Jerry's petition to terminate? Denied. His petition for discovery sanctions? Denied. The $55,000 fee contribution order toward Lynn's attorney fees? Affirmed.

That's the scoreboard. Now let's dissect why.

The Fatal Flaw: You Cannot Claim Hardship While Your Portfolio Grows

Under 750 ILCS 5/510(a-5), maintenance is modifiable only upon a showing of a substantial change in circumstances since the most recent award. The payor bears that burden. And in Bernay III, the Second District found that Jerry didn't just fail to carry it — he undermined his own case with his own financial disclosures.

Jerry's income and assets had actually increased since the prior appeal in Bernay II, 2017 IL App (2d) 160583. Read that again. The man seeking to terminate his maintenance obligation was wealthier than when the court last examined the issue. The trial court found — and the appellate court affirmed — that this fact alone was fatal to establishing a prima facie case of substantial change.

The court's reasoning is as clean as it is devastating: there is no authority supporting termination of permanent maintenance when the payor's resources have increased. The change in circumstances must run in the direction of the party seeking modification. If you're making more money and holding more assets than you were at the time of the last order, your petition is dead on arrival.

For practitioners representing payors, this is the threshold question that must be answered honestly before a single dollar is spent on litigation: Are your client's financial circumstances actually worse than at the time of the most recent maintenance determination? If the answer is no — or worse, if the answer is that things have improved — you are walking your client into a fee contribution order.

The Home Equity Trap: No Duty to Liquidate, Reverse Mortgage, or Sell

Jerry's team advanced what has become an increasingly common argument in high-asset maintenance disputes: that Lynn's home equity (approximately $730,000 net) and inherited assets — artwork insured at roughly $125,000 and a one-third interest in vacant Massachusetts land worth about $22,000 — constituted resources that should offset or eliminate the maintenance obligation.

The trial court rejected this theory. The Second District affirmed. And the reasoning should be tattooed on the inside of every payor's attorney's eyelids: there is no authority requiring a dependent spouse to sell her home, take a reverse mortgage, or liquidate inherited personal property to reduce or eliminate a permanent maintenance obligation.

This is powerful language for recipients, even in an unpublished order. The court cited In re Marriage of Shen, 2015 IL App (1st) 130733, ¶ 87, for the principle that a dependent spouse is not required to lower her marital standard of living while the payor retains sufficient assets to maintain the obligation. And here, the gap between Lynn's current lifestyle and the marital standard of living remained significant — a fact the trial court credited and the appellate court found was not against the manifest weight of the evidence.

For the payor's bar, this is a warning: arguing that your ex-spouse should be forced to cannibalize her housing security or sell family heirlooms to let your client off the hook is not just a losing argument — it's the kind of argument that generates fee contribution orders. Which brings us to the next point.

The $55,000 Fee Contribution: Litigation Has Consequences

Under 750 ILCS 5/508(a)(2) and (b), and consistent with the Illinois Supreme Court's framework in In re Marriage of Heroy, 2017 IL 120205, fee contribution is evaluated based on financial disparity and the parties' respective abilities to pay. The trial court ordered Jerry to contribute $55,000 toward Lynn's attorney fees, and the Second District affirmed without hesitation.

The math here is brutal. Jerry initiated the termination petition. He is the party with $5.7 million in assets and $15,200/month in income. Lynn has $8,000 in liquid assets. He forced a four-day hearing on a petition that the court found lacked a prima facie basis. The fee contribution wasn't punitive — it was the predictable consequence of a wealthy movant dragging an impecunious respondent through unsuccessful litigation.

If you're advising a high-net-worth payor contemplating a termination petition, the fee contribution exposure must be part of the risk calculus from day one. You are not just risking a denial — you are risking a five-figure order funding your opponent's defense of the very obligation you're trying to eliminate.

The Discovery Sanctions Boomerang: Clean Hands Matter

Jerry also sought discovery sanctions against Lynn, alleging inadequate financial disclosures. The trial court denied the request, and the Second District affirmed, noting a fact that should make every litigator wince: Jerry himself had failed to disclose properties in his own initial financial affidavits.

Citing Shimanovsky v. General Motors, 181 Ill. 2d 112, the court reiterated that discovery sanctions exist to coerce compliance, not to punish. Where the requesting party's own hands are unclean, and where the opposing party has no undisclosed evidence to compel, a sanctions petition is an exercise in futility.

This is where the cyber-law crossover becomes critical for modern practitioners. In high-asset dissolutions, financial discovery increasingly involves digital forensics — bank account metadata, cryptocurrency holdings, cloud-stored financial records, and email communications about asset transfers. If your client is seeking sanctions for the other side's alleged non-disclosure, your own client's digital footprint had better be pristine. A forensic examination of financial records cuts both ways, and any competent opposing counsel will demand reciprocal production. Cyber negligence in your own client's disclosures — incomplete digital records, undisclosed accounts, metadata inconsistencies — becomes devastating leverage in the other side's hands.

In Bernay III, the boomerang was analog: undisclosed real properties. In your next case, it could be an undisclosed brokerage account flagged by a forensic accountant's analysis of tax returns, or a cryptocurrency wallet discovered through blockchain tracing. The principle is the same: you cannot credibly seek sanctions for non-disclosure while your own disclosures are incomplete.

The Marital Standard of Living: The Benchmark That Never Dies

Perhaps the most significant practical takeaway from Bernay III is the court's continued reliance on the marital standard of living as the governing benchmark for permanent maintenance — even decades after dissolution. The Bernays' marriage ended in 1995. The permanent maintenance order was entered in 2006. And in 2024, the trial court found that Lynn's standard of living still remained significantly below the marital standard.

For recipients, this is the argument that keeps permanent maintenance permanent. As long as the gap between the recipient's current lifestyle and the marital standard persists, and as long as the payor retains the financial capacity to maintain the obligation, termination is an uphill battle.

For payors, this is the uncomfortable reality: permanent means permanent unless you can demonstrate a genuine, substantial deterioration in your own financial circumstances. The cases that succeed in modification — the Osseck and Carpenter line involving 25%+ income reductions — involve payors whose financial pictures have genuinely and materially worsened. A payor whose net worth has grown by hundreds of thousands of dollars is not that client.

The Quitclaim Question: Tracing Matters

One factual detail in Bernay III deserves attention from practitioners on both sides. Lynn had quitclaimed her interest in her parents' Miami townhouse in 2021. Jerry's team presumably argued this represented a dissipation or voluntary reduction of assets. But the court noted a critical evidentiary gap: there was no evidence Lynn received any sale proceeds.

This is Asset Tracing 101, and it's where digital forensics and financial investigation intersect with family law strategy. If you're the payor's attorney arguing that the recipient transferred away valuable assets, you need to trace the proceeds. A quitclaim deed alone proves transfer of title — it does not prove receipt of consideration. Bank records, wire transfer confirmations, deposit histories — this is the evidence that closes the loop. Without it, you have a deed and a theory, not a case.

And if you're the recipient's attorney, the lesson is equally clear: document everything. If your client transferred property without receiving proceeds — perhaps as part of a family arrangement, or to resolve an estate matter — contemporaneous documentation of the transaction's terms protects against the inevitable argument that she was hiding assets.

Strategic Takeaways for Illinois Practitioners

For payor's counsel: Before filing a termination petition, conduct a rigorous comparison of your client's current financial position against the financial picture at the time of the most recent maintenance determination. If your client's income and assets have increased — or even remained stable — you do not have a prima facie case. Period. Filing anyway exposes your client to a substantial fee contribution order and accomplishes nothing except enriching both sides' attorneys.

For recipient's counsel: Bernay III arms you with a powerful framework. The dependent spouse has no obligation to liquidate her home, reverse mortgage her equity, or sell inherited personal property to subsidize the payor's desire to terminate. The marital standard of living remains the benchmark, and the financial disparity between the parties is your strongest argument for both maintenance continuation and fee contribution.

For both sides: Full financial disclosure is not optional, and it's not a one-way street. The party seeking sanctions for the other side's alleged non-disclosure must have impeccable disclosures of their own. In an era of digital financial records, forensic accounting, and blockchain-traceable transactions, the days of hiding assets behind paper shuffling are over. Your client's entire financial digital footprint is discoverable, and any inconsistency between disclosures and reality will be weaponized.

A Note on Precedential Value

Practitioners must understand the limitations here. Bernay III is an unpublished Rule 23(b) order. Under Rule 23(e)(1), it carries limited precedential value. The published, citable precedent from this litigation remains Bernay II, 2017 IL App (2d) 160583, which established that permanent maintenance should not be "lightly terminated" and that the payor bears the burden of proving substantial change.

Additionally, the maintenance at issue was governed by pre-2019 law — specifically 750 ILCS 5/510(a-5) (West 2018). Practitioners dealing with maintenance orders entered or modified under current statutory provisions should note potential differences in the applicable framework.

That said, unpublished orders reveal how appellate panels are thinking, and Bernay III reveals a court that is deeply skeptical of termination petitions filed by payors whose financial circumstances have improved. That skepticism is not going away.

The Bottom Line

Your opposition just blinked if they think filing a termination petition with a stronger balance sheet than they had at the last hearing is a viable strategy. Bernay III is a cautionary tale wrapped in a fee contribution order, and it reinforces what experienced Illinois family law practitioners already know: permanent maintenance termination requires genuine financial deterioration on the payor's side, not creative arguments about the recipient's home equity or grandmother's paintings.

If you're facing a maintenance termination petition — or contemplating filing one — the strategic analysis must begin before the petition is drafted, not after the four-day hearing generates a $55,000 fee order. Book a consultation with our team now. Whether you're the payor who needs a realistic assessment of whether termination is achievable, or the recipient who needs to defend an obligation that stands between you and financial ruin, the analysis starts with the numbers — and the numbers don't lie.

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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