In re Marriage of Shen, 2015 IL App (1st) 130733

- Case citation and parties
In re Marriage of Shen, 2015 IL App (1st) 130733 (Ill. App. Ct. June 30, 2015). Petitioner-Appellee/Cross‑Appellant: Feng Shen; Respondent‑Appellant/Cross‑Appellee: Janet Shen.

- Key legal issues
1) Whether the trial court abused its discretion by limiting wife’s maintenance to termination on her 66th birthday.
2) Whether the court could order liquidation/early withdrawal of husband’s 401(k) to pay interim attorney and child‑representative fees.
3) Whether the denial of wife’s request for contribution to attorney fees was proper (standard for fee awards).
4) Allocation/payment source for child‑representative fees and sale/priority of a Florida timeshare.
5) Whether the trial court properly denied husband’s petition to modify maintenance based on alleged changed employment/health.

- Holding / outcome
- Maintenance: Reversed in part. The limited‑duration maintenance term (terminating at wife’s 66th birthday) was an abuse of discretion; the appellate court ordered the trial court to amend the judgment to award permanent maintenance subject to statutory termination factors (750 ILCS 5/510(c)) and included a provision permitting review if the wife’s income reaches $45,000.
- 401(k) liquidation (Oct. 12, 2011 order): Reversed; trial court erred by ordering early withdrawal/liquidation to pay fees. Remanded for further proceedings and appropriate relief.
- Attorney fee contribution: Affirmed — denial of wife’s request for contribution was not an abuse of discretion under Schneider standard.
- Child‑representative fees and timeshare sale: Court’s allocation requiring each party to pay half of child rep fees affirmed; sale/prioritization of the timeshare to pay the child rep was upheld (section 506(b) authorizes payment from “any” source).
- Husband’s motion to modify maintenance: Affirmed — trial court did not abuse discretion.

- Significant legal reasoning (concise)
- Maintenance: No evidence supported a limited duration tied to retirement age; evidence showed the wife’s continuing inability to be self‑supporting, requiring permanent maintenance.
- 401(k): Cited In re Marriage of Radzik and 735 ILCS 5/12‑1006 — retirement accounts are exempt from execution/attachment and cannot be liquidated to satisfy interim fee obligations in the manner ordered. The October 2011 order therefore conflicted with statutory protections.
- Attorney fees: Illinois continues to apply Schneider (214 Ill. 2d 152) — the requesting spouse must show inability to pay and the other spouse’s ability; trial court’s finding that the husband lacked ability to pay was not against the manifest weight.
- Child‑rep fees/timeshare: Section 506(b) allows payment from “any” source, including marital estate, so prioritizing timeshare proceeds to satisfy child‑rep fees was permissible.

- Practice implications for family lawyers
- If seeking limited‑duration maintenance tied to retirement, develop a robust evidentiary record showing ability to be self‑supporting post‑termination; absent that, expect permanent maintenance.
- Avoid relying on liquidation/early withdrawal of retirement plans to pay interim fees — check Radzik and 735 ILCS 5/12‑1006; seek alternative security/fee arrangements and be prepared for remand if retirement funds were used improperly.
- When requesting fee contribution, plead and prove the Schneider factors (inability to pay + other spouse’s ability).
- For child‑representative fees, remember §506(b) permits payment from the marital estate; consider ordering prioritization of specific assets but preserve arguments if foreclosure or post‑judgment events occur (consider 2‑1401 or Rule 366 strategy as appropriate).