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Drugs and alcohol make people do crazy things. When someone is intoxicated their actions can threaten or hurt others…even the people they claim to love. Behavior when a person is intoxicated can be abusive. Abusive behavior requires the court to issue an order of protection. “If the court finds that petitioner has been abused by a family or household member…an order of protection prohibiting the abuse, neglect, or exploitation shall issue” 750 ILCS 60/214 The definition of abuse is very broad. “’Abuse’ means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation” 750 ILCS 60/103(1) Most behavior of an intoxicated person could be accurately described as harassment. “’Harassment’ means knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances; would cause a reasonable person emotional distress; and does cause emotional distress to the petitioner.” 750 ILCS 60/103(7) Intoxicated people are always doing things that are not “reasonable” and “would cause…emotional distress.” A respondent’s intoxication alone may cause sufficient distress to warrant a finding of harassment. “Harassment results from intentional acts which cause someone to be worried, anxious, or uncomfortable. Harassment does not necessarily require an overt act of violence.…[H]arassment occurs when a protagonist knowingly causes his victim to suffer undue distress.” People v. Whitfield, 147 Ill. App. 3d 675, 680 (Ill. App. Ct. 1986) However, there must be some evidence more specific than habitual intoxication. “The bases for the request for an order of protection were that [Petitioner] believed [Respondent] had an alcohol problem; that he muttered swear words under his breath on one occasion; that he awakened the children early in the morning to go on a trip; and that she was afraid he might have an accident. There were no credible allegations of abuse, harassment, or interference with personal liberty. There was, then, insufficient evidence to support the entry of a plenary order of protection.” In re Marriage of Healy, 635 NE 2d 666 – Ill: Appellate Court, 1st Dist., 2nd Div. 1994 Intoxicated people usually provide an incident that is sufficient to warrant an order of protection. Calling the police to investigate the intoxicated person will often create a solid basis for an order of protection as police are required to investigate any allegations of abuse. “Whenever a law enforcement officer has reason to believe that a person has been abused, neglected, or exploited by a […]

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Orders of protection are scary in multiple ways. The people asking for protection from their romantic partner usually also rely on that romantic partner for financial support. One of the purposes of the Illinois Domestic Violence Act is to “address any related issues of child custody and economic support, so that victims are not trapped in abusive situations by fear of retaliation, loss of a child, financial dependence, or loss of accessible housing or services” 750 ILCS 60/102(4) The Illinois Domestic Violence Act specifically provides for child support within an order of protection. “Order for payment of support. Order respondent to pay temporary support for the petitioner or any child in the petitioner’s care or over whom the petitioner has been allocated parental responsibility, when the respondent has a legal obligation to support that person, in accordance with the Illinois Marriage and Dissolution of Marriage Act, which shall govern, among other matters, the amount of support, payment through the clerk and withholding of income to secure payment. An order for child support may be granted to a petitioner with lawful physical care of a child, or an order or agreement for physical care of a child, prior to entry of an order allocating significant decision-making responsibility. Such a support order shall expire upon entry of a valid order allocating parental responsibility differently and vacating the petitioner’s significant decision-making authority, unless otherwise provided in the order.” 750 ILCS 60/214(b)(12) “This provision [750 ILCS 60/214(b)(12)] is straightforward and unambiguous. It expressly authorizes courts entering orders of protection to order the respondent to pay temporary child support when the respondent has a ‘legal obligation to support that person.’” Martinez v. Leon, 2024 IL App (1st) 231058 In addition to child support, the Illinois Domestic Violence Act allows for a variety of other forms of support. An order of protection can also “[o]rder respondent to pay petitioner for losses suffered as a direct result of the abuse, neglect, or exploitation. Such losses shall include, but not be limited to, medical expenses, lost earnings or other support, repair or replacement of property damaged or taken, reasonable attorney’s fees, court costs and moving or other travel expenses, including additional reasonable expenses for temporary shelter and restaurant meals… If a party is entitled to seek maintenance, child support or property distribution from the other party under the Illinois Marriage and Dissolution of Marriage Act, as now or […]

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Illinois courts are happy to grant orders of protection. Orders of protection prevent possible tragedies with little harm to the parties who are subject to the order of protection. Orders of protection simply prevent a party from doing something that may lead to some kind of future abuse of another party. “An order of protection is an injunctive order because it directs a person to refrain from doing something, such as to refrain from entering or residing where he or she lived before the order was entered.” In re Marriage of Padilla, 2017 IL App (1st) 170215, ¶ 17 Still, the courts must be presented with sufficient evidence in order to issue an order of protection. “Although the Illinois Domestic Violence Act of 1986 is to be construed liberally to protect victims of domestic violence, help them avoid further abuse, and to expand the remedies for victims of domestic violence including, when necessary, physical separation of the parties there must be some evidence in the record to support the relief requested.” In re Marriage of Healy, 635 NE 2d 666 – Ill: Appellate Court, 1st Dist., 2nd Div. 1994 (citations and quotations omitted)(emphasis mine) What must be proven in order for an Illinois court to grant an order of protection? When determining whether an order of protection should be issued an Illinois court’s “central inquiry is whether the petitioner [or the minor child] has been abused.” Best v. Best, 223 Ill. 2d 342, 348 (2006) “If the court finds that petitioner has been abused by a family or household member…an order of protection prohibiting the abuse, neglect, or exploitation shall issue” 750 ILCS 60/214 There needs to be a finding by the court that the petitioner was “abused by a family or household member” for an order of protection to issue. Abuse has 4 different possible forms in an Illinois Petition For Order Of Protection. “’Abuse’ means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation” 750 ILCS 60/103(1) Harassment, intimidation, interference with personal liberty, each have their own definition. “Harassment” means knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances; would cause a reasonable person emotional distress; and does cause emotional distress to the petitioner. Unless the presumption is rebutted by a preponderance of the evidence, the following types of conduct shall be presumed to cause emotional […]

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There’s a lot of selfish reasons to enter into a prenuptial agreement or a postnuptial agreement: you want to keep your stuff or you don’t want pay your spouse support in the future. There is one, relatively, noble reason to enter into a prenuptial agreement or a postnuptial agreement, to preserve your heir’s inheritance in case you get divorced. If a married person with children dies without a will the current spouse automatically gets 50% of their estate, “If there is a surviving spouse and also a descendant of the decedent: 1/2 of the entire estate to the surviving spouse and 1/2 to the decedent’s descendants per stirpes.” 755 ILCS 5/2-1(a) A Surviving Spouse’s Right To Renounce Their Deceased Spouse’s Will If a married person has a will, they can leave their assets to whomever they want…unless their spouse ‘renounces’ the will. “If a will is renounced by the testator’s surviving spouse, whether or not the will contains any provision for the benefit of the surviving spouse, the surviving spouse is entitled to the following share of the testator’s estate after payment of all just claims: 1/3 of the entire estate if the testator leaves a descendant or 1/2 of the entire estate if the testator leaves no descendant.” 755 ILCS 5/2-8(a) “[I]f competent, the survivor has an absolute right to renounce the will of the deceased spouse by filing a renunciation.” First Nat’l Bank of Danville v. McMillan, 12 Ill. 2d 61, 66-67 (1957) The current surviving spouse always gets the opportunity to renounce the will…unless they have previously agree not to. “[A]bsent a valid prenuptial or postnuptial agreement the wishes of a surviving spouse can trump a testator’s intentions.” In re Estate of Feinberg, 235 Ill. 2d 256, 266 (Ill. 2009)(citations omitted) Prenuptial and Postnuptial Agreements Effect On The Surviving Spouse’s Right To Renounce A Will Prenuptial agreements are called ‘premarital agreements’ in the Illinois Marriage and Dissolution of Marriage Act. “”Premarital agreement” means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.” 750 ILCS 10/2(1) “The Illinois Premarital Agreement Act allows parties to waive or modify their marital rights by entering into a valid premarital agreement, with limited grounds provided to find the agreement to be unenforceable…By entering into a valid premarital agreement, parties agree that their enumerated rights at dissolution are no longer governed by applicable statutes where those rights are […]

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Divorce is a touchy subject. Each party to a divorce knows a great deal of the other party’s secrets. The divorcing parties, armed with those secrets, are now trying to resolve their differences in a public forum: family court. The reality is that divorcing couples really don’t know everything about each other. That’s part of why they are getting divorced. Therefore, public, written accusations about the other party may often be speculative with only a presumption that the accuser knows the facts with certainty. For example, a spouse may accuse their spouse of “hiding unknown quantities of cash” or “grooming a child.” These are serious accusations…without much detail. More common in a divorce pleading is the factual basis “upon information and belief.” This common refrain in divorce pleadings does NOT tell you anything. The point of a pleading is to adequately inform the court and the opposing side of the controversy that needs to be resolved. “No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he or she is called upon to meet.” 735 ILCS 5/2-612(b) The intimate and emotional nature of divorce cases often allows for pleadings with presumptions and conclusions like “I have suffered abuse for years” or “Respondent is a narcissist.” While these types of accusations may be true, the courts require more information to properly understand the issues before it. “Conclusions of fact will not suffice to state a cause of action regardless of whether they generally inform the defendant of the nature of the claim against him.” Grund v. Donegan, 298 Ill. App. 3d 1034, 1039 (Ill. App. Ct. 1998) Insufficiently detailed accusations are not allowed in Illinois pleadings. “Illinois is a fact-pleading jurisdiction.” Marshall v. Burger King Corp., 856 NE 2d 1048 – Ill: Supreme Court 2006 Fact pleading is “a procedural system requiring that the pleader allege merely the facts of the case giving rise to the claim or defense, not the legal conclusions necessary to sustain the claim or establish the defense.” Black’s Law Dictionary (11th ed. 2019) An Illinois pleading-filer “is required to set forth a legally recognized claim and plead facts in support of each element that bring the claim within the cause of action alleged.” Rodriguez v. Illinois Prisoner Review Board, 376 Ill. App. 3d 429, 434 (2007) This does not mean that you have […]

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Most divorces in Illinois are resolved by agreement. The steps leading to that agreement should be fair if both parties are adequately represented by competent counsel. However, if one party explicitly lies in order to get the agreement they want, that agreement may be reformed or vacated. Lying to convince someone to enter into a contract is fraudulent inducement. Final Agreements In An Illinois Divorce Before we analyze fraudulent inducement as an attack on a final agreed divorce judgement, we must understand that final agreements in an Illinois divorce usually stay final. The purpose of the Illinois Marriage and Dissolution of Marriage Act is “[t]o promote amicable settlement of disputes between parties to a marriage attendant upon the dissolution of their marriage, the parties may enter into an agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them, support, parental responsibility allocation of their children, and support of their children as provided in Sections 513 and 513.5 after the children attain majority.” 750 ILCS 5/502(a) “The terms of the agreement, except those providing for the support, custody, and visitation of the children, are binding on the court unless it finds after considering the circumstances of the parties and any other relevant evidence provided by the parties, on their own motion or on the request of the court that the agreement is unconscionable.” 750 ILCS 5/502(b) “A settlement agreement can be set aside if it is shown that the agreement was procured through coercion, duress or fraud, or if the agreement is unconscionable.” In re Marriage of Gorman, 284 Ill. App. 3d 171, 180 (Ill. App. Ct. 1996) The “burden [of vacating an agreement due to fraud] is even more onerous when a party seeks to vacate or modify a property settlement incorporated in a divorce decree,  all presumptions being in favor of the validity of the settlement.” Lagen v. Lagen, 302 NE 2d 201 – Ill: Appellate Court, 1st Dist. 1973 Fraud In An Illinois Divorce Fraud is one of the only ways an agreed final divorce judgement and its terms can be reviewed. There are many kinds of fraud. For example, switching out a different Marital Settlement Agreement at the last minute is “fraud in the factum.” More common for former couples who have lost all trust in each other is fraud in the inducement. Fraudulent inducement or fraud in the inducement is “Fraud […]

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Ernest Hemingway was once asked, “How’d you go bankrupt?” Ernest replied, “Two ways, slowly and then all at once.”  That’s a lot like how a divorce works. Years of resentment and planning become tactics and strategies once the divorce is finally filed.  Often, one spouse is left without support yet the discovery deadlines necessary to determine both spouse’s incomes are months away.  In Illinois divorce cases, that spouse needs temporary maintenance (formerly known as alimony) in their Illinois divorce. “One of the principal purposes of granting temporary maintenance and/or child support is to attempt to balance the equities between the parties as fairly as possible while the dissolution case is pending.” In re Marriage of Hochstatter, 2020 IL App (3d) 190132  Temporary Motions In Illinois Divorces I tell my clients that the Illinois divorce system is fair but it takes a LONG time.  This is because seasoned divorce attorneys will not settle a case and Illinois divorce judges will not make final decisions until all of the relevant discovery is exchanged. Discovery is the financial documents that prove what a party to a divorce earns, owns and owes.  Even in the most simple cases, this process takes months until the discovery is deemed sufficiently adequate by both sides to finalize the divorce, distribute assets and award maintenance (formerly known as alimony) The way to deal with the long wait for justice in an Illinois divorce is to file the necessary temporary motions to maintain each spouse while the discovery process ensues.  The Illinois Marriage and Dissolution of Marriage Act provides for temporary motions that require very little initial discovery and evidence and can be heard very quickly by an Illinois divorce judge. “Either party may petition or move for … “temporary maintenance or temporary support of a child of the marriage entitled to support, accompanied by an affidavit as to the factual basis for the relief requested. “ 750 ILCS 5/501(a) The statute doesn’t make a distinction between child support and maintenance for temporary purposes.  They know you need the money now. Factor Description Summary Hearing The judge makes a quick decision based on financial affidavits, tax returns, pay stubs, banking statements, and other relevant documentation. Financial Affidavits Includes the respective incomes and expenses of the divorcing parties, which are critical in determining maintenance awards. Evidentiary Hearing A formal process where witnesses are put on the stand, and evidence […]

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Divorce is rarely a surprise. A person anticipating divorce will contemplate how their net worth will likely be reduced by half at the end of the divorce process. This potential loss of assets via divorce may induce a spouse to start transferring money and assets to third parties before the divorce is finalized. In theory, a divorce court cannot divide assets that neither party to the marriage no longer possess. People are allowed to transfer property they own in Illinois. “In Illinois…the owner of property has an absolute right to dispose of his property during his lifetime in any manner he sees fit, and he may do so even though the transfer is for the precise purpose of minimizing or defeating the statutory marital interests of the spouse in the property conveyed.” Johnson v. La Grange State Bank, 383 NE 2d 185 – Ill: Supreme Court 1978 While a party to an Illinois divorce CAN transfer their property to avoid division of assets, those transfers can be voided or set aside later by an Illinois divorce court. “[C]ircumstances to give rise to a [fraudulent conveyance, allow for] setting aside the assignment [of the asset] as fraudulent” Till v. Till, 231 NE 2d 641 – Ill: Appellate Court, 1st Dist., 1st Div. 1967 Transfers before or during a divorce with the intent to deprive the other spouse of their rights to a marital property are a fraud. “[F]raud against marital property is not to be condoned even though it occurs before dissolution.” Hofmann v. Hofmann (1983), 94 Ill.2d 205, 220, 446 N.E.2d 499. Fraudulent transfers should be investigated by the defrauded spouse and brought to the Illinois divorce court’s attention. Marital Property Is No Longer Divisible By An Illinois Divorce Court If The Marital Property Is Not Held By Either Spouse At the end of an Illinois divorce an Illinois divorce court “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503(d) “‘[M]arital property’ means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 5/503(a) “For purposes of distribution of property, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed marital property.” 750 ILCS 5/503(b) Property not held by a spouse…must be held by someone else. If so, an Illinois divorce court cannot […]

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After a divorce, people move on. After a divorce, former spouses date and marry other people. Sometimes, they move very, very far away to date or marry other people. Good luck to those who have found love again in a new community, new state or even a new country. However, if a moving parent has primary custody of a child…they are going to have a hard time as relocation with a child typically requires permission from the court that entered the original parenting plan. There is a very detailed procedure in Illinois which does allow for relocation with a child to a new state. “A parent who has been allocated a majority of parenting time or either parent who has been allocated equal parenting time may seek to relocate with a child.” 750 ILCS 5/609.2(b) Is The Move Even Far Enough To Qualify As A Relocation? Moving across the street does not require a custodial parent to do anything. Moving to another state clearly does require some kind of action with the court. Other moves between 25 and 50 miles may require a court filing to allow relocation with a child. “Relocation” means: (1) a change of residence from the child’s current primary residence located in the county of Cook, DuPage, Kane, Lake, McHenry, or Will to a new residence within this State that is more than 25 miles from the child’s current residence, as measured by an Internet mapping service; (2) a change of residence from the child’s current primary residence located in a county not listed in paragraph (1) to a new residence within this State that is more than 50 miles from the child’s current primary residence, as measured by an Internet mapping service; or (3) a change of residence from the child’s current primary residence to a residence outside the borders of this State that is more than 25 miles from the current primary residence, as measured by an Internet mapping service.” 750 ILCS 5/600(g) If the move does not qualify as a “relocation” under 750 ILCS 5/600(g), just move and let the other parent know their drive to pick up their children for visitation will be that much longer. Aspect Description Burden of Proof The relocating parent must prove by a preponderance of the evidence that relocation is in the child’s best interest. Outcome if Denied If the parent cannot prove the relocation is in the child’s best […]

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While adultery and betrayal can be central to any divorce, there seems to be no greater betrayal than financial betrayal. Illinois, while being a no-fault state for divorce, does recognize financial betrayal and takes strict accounting of extreme financial malfeasance on the part of either spouse. This accounting of marital money spent on girlfriends, boyfriends, drugs, gambling, or other non-marital purposes is referred to as a “dissipation of assets.” What Is A Dissipation Of Assets In An Illinois Divorce? “Dissipation is defined as the use of marital property for one spouse’s sole benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.” In re Marriage of Tietz, 605 NE 2d 670 – Ill: Appellate Court, 4th Dist. 1992 Dissipation is one of the factors the Illinois statute allows when considering the final allocation of marital debts and assets. An Illinois divorce court “shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including: … the dissipation by each party of the marital property” 750 ILCS 5/503(d)(2) A claim of dissipation is NOT exclusively an accounting of expenses related to marital misconduct such as adultery. But, it would be pretty difficult to claim that an activity such as adultery, gambling or drugs were “related to the marriage.” There are innumerable expenses that could be considered “not related to the marriage”; buying a boat when the other spouse protested, a shopping addiction, vacations alone, even gifts or regretable investments. “A spouse may dissipate marital assets even though he or she derives no personal benefit from the dissipation.” In re Marriage of Thomas, 608 NE 2d 585 – Ill: Appellate Court, 3rd Dist. 1993 “The concept of dissipation is premised upon waste,” specifically the “diminution in the marital estate’s value due to a spouse’s actions.” In re Marriage of Brown, 2015 IL App (5th) 140062, ¶ 67 “Dissipation occurs when one spouse uses marital property for his or her sole benefit while the marriage is undergoing an irreconcilable breakdown.” In re Marriage of Stuhr, 2016 IL App (1st) 152370 (citations omitted) The possibilities for dissipation claims are endless and usually get negotiated away in mediation prior to an actual dissipation claim being filed by either party. A dissipation claim is further narrowed by the Illinois statue in that the aggrieved spouse must formally issue a dissipation claim […]

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Divorce orders catch two parties in a state of flux. Money is coming in and going out. Kids are growing up. By the time a disagreement between two divorcing or divorced parties is brought to court, the issue is often resolved by not being relevant anymore. Legal issues that no longer have current relevant facts to consider are described as “moot” For an issue to be “moot” it “describ[es] a point or question that is subject to debate, dispute, or uncertainty, and typically used in legal contexts to refer to issues that are hypothetical or of no practical importance.” Black’s Law Dictionary (11th ed. 2019) In Illinois divorce cases, moot issues usually involve money owed that was paid months after it was due or parenting issues involving events that occurred long before the parties could get to court. Illinois courts are busy! They cannot deal with issues that are now irrelevant and are only hypothetical. “As a general rule, courts in Illinois do not decide moot questions, render advisory opinions, or consider issues where the result will not be affected regardless of how those issues are decided.” In re Alfred H.H., 233 Ill. 2d 345, 351 (2009) An issue in a divorce case may be moot…but it is still annoying. An Illinois divorce court’s declaration that an issue is moot will only encourage the offending party to fail to comply with orders and wait for the issue to become moot before the court can review their bad behavior. An issue being dismissed as moot can be overcome by invoking the doctrine of “capable of repetition, yet evading review.” “The courts in Illinois have held that where a case involves an event of short duration which is “capable of repetition, yet evading review,” it may qualify for review even if it would otherwise be moot.  To receive the benefit of this exception, the complaining party must demonstrate that: (1) the challenged action is in its duration too short to be fully litigated prior to its cessation and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again.” In re Barbara H., 183 Ill. 2d 482, 491 (1998) Virtually every violation of an Illinois divorce court’s order can fall under this exception. Especially, if it has occurred more than once. Additionally, the issues that come up and (and then go away) in family law […]

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Diversification is the investment strategy whereby holding a variety of assets creates a greater long-term return because the variety reduces risk. In addition to thousands of tradable stocks and bonds, the average investor may also own real estate. The advantage of owning real estate as an investment is that you can borrow to buy the real estate (creating a higher return), the interest on that loan is tax-deductible, the calculated depreciation is also tax-deductible and, if the property is rented, there is rental income. The downsides to owning property are that the property must be physically maintained, the property tax must be paid and the property can only be sold all at once (unlike stocks or bonds which can be purchased in shares or certificates). One of the biggest downsides to owning a rental property is what to do with the rental property in the case of a divorce. A rental property has value that must be distributed, income that must be accounted for and liabilities that someone needs to be held responsible for. So, how is a second home or rental property handled in an Illinois divorce? Is The Rental Property Marital Or Non-Marital? In Illinois, the first step in determining what happens with any property in a divorce is determining whether that property is marital or non-marital. “The court shall make specific factual findings as to its classification of assets as marital or non-marital property, values, and other factual findings supporting its property award.” 750 ILCS 5/503 Non-marital property is not divisible in a divorce.  If a piece of real estate is held in one person’s name and determined to be marital property, that person will leave the divorce as the sole owner of that property. “[T]he court shall assign each spouse’s non-marital property to that spouse.” 750 ILCS 5/503(d) In the case of rental property that is deemed non-marital, the income from that property shall also be deemed non-marital. “[I]ncome from property acquired by a [non-marital] method” 750 ILCS 5/503 shall remain non-marital. Marital property, however shall be divisible in a divorce. Illinois divorce courts “shall divide the marital property” 750 ILCS 5/503(d) Marital property is any property that was acquired during the marriage (with lots of exceptions) “‘[M]arital property’ means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 5/503(a) If the property was acquired via an inheritance […]

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Maintenance (formerly known as alimony) in Illinois is an ongoing obligation for a set amount per month over a set duration of time. Most people would simply prefer to be finished with their ex-spouse instead of paying their ex-spouse monthly or, conversely, the ex-spouse hoping they will be paid every month.  In lieu of entering into an agreement for monthly maintenance payments, the parties to an Illinois divorce may arrange for the maintenance payor to “buy out” the maintenance receiver with a lump-sum payment. Not only does this eliminate ongoing contact between the parties but it also removes the possibility of future litigation over maintenance modification while providing significant tax benefits to the maintenance payor. How Is Maintenance Calculated In An Illinois Divorce? An Illinois divorce court must first determine if maintenance is appropriate in the divorce before them. A variety of factors are listed that the court may consider…but, in general, maintenance is always deemed appropriate so long as the parties only recently separated. “[I]f the court finds that a maintenance award is appropriate, the court shall order guideline maintenance” 750 ILCS 5/503(b-1) “Guidelines maintenance” is the official formula by which maintenance is to be calculated in amount and duration. “Maintenance…shall be calculated by taking 33 1/3% of the payor’s net annual income minus 25% of the payee’s net annual income.” 750 ILCS 5/503(b-1)(1)(A) The 25% deduction from the payee’s income almost never makes a significant difference (their income is way smaller) but the relative size of the payee’s income creates a huge stopgap. “The amount calculated as maintenance, however, when added to the net income of the payee, shall not result in the payee receiving an amount that is in excess of 40% of the combined net income of the parties.” 750 ILCS 5/503(b-1)(1)(A)(emphasis mine) Only if the maintenance payor makes three times the income of the payee will the maintenance payor’s payment not be impacted by this 40% cap. These maintenance guidelines only apply to divorcing couples making less than $ 500,000 annually combined. Guidelines maintenance does not apply “[i]f the combined gross annual income of the parties is less than $500,000 and the payor has no obligation to pay child support or maintenance or both from a prior relationship” 750 ILCS 5/504(b-1)(1) What amount of maintenance is required do couples who make in excess of $ 500,000 annually combined? There is no calculated amount. The court […]

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Money is a funny thing in an Illinois divorce. In a divorce, money is an asset that can be divisible or not based on whether it is marital.  In a divorce money is also evidence of income which can determine child support and maintenance (formerly known as alimony).  Money usually comes in regular allotments every two weeks but sometimes it comes in all at once as a bonus.  So, how is a bonus treated in an Illinois divorce? Is A Bonus Marital Property in Illinois? “Marital property” is property which a court may divide amongst the two parties in a divorce. “Non-marital property” is property which can NOT be divided by the court.  Non-marital property must stay in whomever’s name or possession which it is currently in. When divided, Marital property is divided “equitably.” That is to say that the Illinois divorce courts are not constrained to divide the property equally but rather can divide the property any way the court thinks is fair.  This split can sometimes be 60/40 or even 70/30 but marital property is almost always split 50/50 by a Chicago divorce court, in my experience. Marital property is “all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 5/503(a) So, everything earned after the date of the marriage and before the marriage is officially over (the divorce) is marital. But there’s a lot of exceptions to rule and the statute lists them all: “(1) property acquired by gift, legacy or descent or property acquired in exchange for such property; (2) property acquired in exchange for property acquired before the marriage; (3) property acquired by a spouse after a judgment of legal separation; (4) property excluded by valid agreement of the parties, including a premarital agreement or a postnuptial agreement; (5) any judgment or property obtained by judgment awarded to a spouse from the other spouse except, however, when a spouse is required to sue the other spouse in order to obtain insurance coverage or otherwise recover from a third party and the recovery is directly related to amounts advanced by the marital estate, the judgment shall be considered marital property; (6) property acquired before the marriage, except as it relates to retirement plans that may have both marital and non-marital characteristics; (6.5) all property acquired by a spouse by the sole use of non-marital property as collateral for a […]

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Maintenance, formerly known as “alimony” in Illinois, is a way to further ensure an equitable division of finances between two spouses who have unequal incomes. One spouse has relied on the other spouse for regular financial support, the Illinois legislature states the supporting spouse should continue to support their ex-spouse in a definite amount for a period of definite time. Ordering maintenance for a defined duration of time makes sense if the supporting spouse is going to be working for the entirety of that defined duration of time. But, if the supporting spouse is likely to retire during that defined duration, certain considerations must be taken.

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There is probably no more byzantine and complex process in an Illinois divorce than valuing and dividing a business. The business-operating spouse will always want to keep the business while claiming the business is worthless. The spouse who doesn’t operate the business will want a grandiose share of the business’s value…without really knowing what that value is. A business’s value will surely go to trial or be negotiated fiercely. The business owner and his or her spouse must know how an Illinois court determines the value and division of a business. More importantly, the litigants’ divorce lawyers must understand completely how a business is valued by experts who disagree and how to apply those valuations to the body of Illinois that governs the valuation and division of businesses in an Illinois divorce. Is a Business Marital or Non-Marital In An Illinois Divorce? Every asset in an Illinois divorce must first be determined to be marital or non-marital. “The court shall make specific factual findings as to its classification of assets as marital or non-marital property, values, and other factual findings supporting its property award.” 750 ILCS 5/503 For business interests non-marital property is, typically, property acquired before the marriage or via an inheritance/gift. [T]he following…is known as “non-marital property:” “property acquired before the marriage” 750 ILCS 5/503(a)(3) “property acquired by gift, legacy or descent or property acquired in exchange for such property” 750 ILCS 5/503(a)(1) The non-marital property MUST stay with the party in whose name that non-marital property remains. “[T]he court shall assign each spouse’s non-marital property to that spouse.” 750 ILCS 5/503(d) “Real property and business interests acquired after marriage are presumed to be marital property unless they were purchased with nonmarital funds.” IN RE MARRIAGE OF SCHMITT, 909 NE 2d 221 – Ill: Appellate Court, 2nd Dist. 2009 “The business interest of a spouse acquired subsequent to marriage constitutes `marital property’ subject to equitable distribution upon dissolution.” In re Marriage of Schneider, 343 Ill.App.3d 628, 634, 278 Ill.Dec. 485, 798 N.E.2d 1242 (2003) Businesses that have portions thereof that were acquired before the marriage, ex: a building that was bought after the marriage, will have those potions deemed to be non-marital. The increase in value of those pre-marital properties will also be deemed non-marital. Business properties “owned before the marriage are…nonmarital property. They are no doubt worth more now than they were then. However, the increase in value of […]

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A financially successful person makes a lot of money and saves a lot of money. After an Illinois divorce, a financially successful person will be expected to divide their savings with their ex-spouse and pay their ex-spouse maintenance (formerly known as alimony). The ex-spouse will have half of the successful professional’s assets AND a portion of the successful professional’s income for a set period of time (or forever). Is this fair? Does it ever end? There may be one viable objection to paying both half your assets and maintenance to the your ex-spouse: double dipping. “Commentators use the phrase “double dipping” to describe the seeming injustice that occurs when property is awarded to one spouse in an equitable distribution of marital assets and is then also considered as a source of income for purposes of imposing support obligations.” In re Marriage of Eberhardt, 387 Ill. App. 3d 226, 232 (Ill. App. Ct. 2008) (citation omitted) Double dipping is discouraged because of the distinction between what is modifiable and what is non-modifiable in an Illinois divorce. The division of assets in an Illinois divorce is permanent and non-modifiable. “The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State.” 750 ILCS 5/510(b) In contrast, maintenance is modifiable if there’s been some kind of significant change in either party’s life. “An order for maintenance may be modified or terminated only upon a showing of a substantial change in circumstances.” 750 ILCS 5/510(a-5) The party paying maintenance can file a motion to modify upon retirement. Typically, when the maintenance payor retires, they begin to live off their savings from a tax-deferred retirement account such as a 401k. Because 401ks defer the taxes owed on the saved money to the time that the money is withdrawn, those withdrawals look like income on a tax return. The maintenance receiver is NOT entitled to a portion of that 401k distribution “income” because the underlying money was already awarded in the property distribution of the Marital Settlement Agreement. An “ordered [change] in maintenance [is] actually a modification of the parties’ property settlement agreement rather than a modification of the maintenance provision of the dissolution judgment based on a substantial change in circumstances. While maintenance provisions are modifiable upon a showing of a substantial change in […]

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The term “stock options” has a certain mystique. Stock options seem like a sophisticated financial instrument for the rich and about-to-be-rich…and they kind of are.  The problem with sophisticated financial instruments like stock options, is that they are hard to divide in an Illinois divorce.  So, how do you divide stock options in an Illinois divorce? What Are Stock Options? There are two classes of options that people refer to when they say “stock option” One type of stock option is a sophisticated way to buy or sell stocks by betting on the stock’s future value without actually buying the stock. This is usually just called an “option.” This is financial device is not what people usually refer to as a “stock option” in a divorce. I discuss options first, before employee stock options to clarify how the concept of an option works. An option gives an investor the right, but not the obligation, to buy or sell a stock at an agreed upon price and date. Whether you have the right to buy or sell a stock through an option is referred to as “calls” or “puts.” A call is a bet that the stock will go up.  A call might cost as little as $ 2. But it could give you the right to buy a share of Wal-Mart for $ 30.  If Walmart’s stock goes up to $ 50.  You can use your call to buy it for $ 30. That’s an $ 18 profit after the $ 2 call price. A put is a bet the stock will fail.  So, you can bet the right to sell a stock at a price and assume the price will be less than that.  So, if you have a General Electric put for $ 80 and General Electric is priced at $ 50.  You can buy a share of General Electric at $ 50 and then sell it via your put at $ 80 and keep the $ 30 difference. These types of stock options usually only last for a short period of time. They never last more than 2 years. Because of the short time frame, these types of independently exercised stock options are never divided in a divorce because the expiration date usually passes before the divorce is finalized. Type of Option Description Call Option A call option gives the investor the right to buy a stock […]

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Divorce is terrible. Divorce changes everything in both parties’ lives and in their children’s lives. However, the status quo of living in misery and distrust cannot remain either. There must be some kind of half-measure, some kind of remediation in between marriage and divorce. Often, parties will look to a postnuptial agreement (also known as a “postnup” or an antenuptial agreement) as a way to delay divorce and set new terms for an eventual divorce. How does a postnuptial agreement work in Illinois? A postnuptial agreement is “an agreement entered into during marriage to define each spouse’s property rights in the event of a death or divorce.” Black’s Law Dictionary (11th ed. 2019). Agreements happen between couples before a divorce is finalized all the time…and Illinois courts will acknowledge them. “To promote amicable settlement of disputes between parties to a marriage attendant upon the dissolution of their marriage, the parties may enter into an agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them, support, parental responsibility allocation of their children, and support of their children” 750 ILCS 5/502(a) In Illinois a contract is “an agreement between competent parties, upon a consideration sufficient in law, to do or not to do a particular thing.” People v. Dummer (1916), 274 Ill. 637, 640. Why A Postnuptial Agreement Can Be A Good Idea In Illinois When divorce is a possibility (but not a certainty), it may be a good idea to set the terms of that divorce in advance via contract. If the terms of a potential divorce are not set in advance, the terms of the potential divorce will be the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/et al. “If the parties decide to settle their property rights by mutual agreement rather than by statute, they are bound to the terms of their agreement.” In re Marriage of McLauchlan, 2012 IL App (1st) 102114, ¶ 21. Marital property that would, normally, be divisible can become non-marital and, thus, non-divisible in an Illinois divorce. Non-marital property can be “property excluded by valid agreement of the parties, including a premarital agreement or a postnuptial agreement.” 750 ILCS 5/503(a) A postnuptial agreement could be entered into reflecting that the parties’ fiscal relationship has completely changed over the years (maybe the parties became wealthy and one party wants to keep a business while the other party has no interest […]

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In a divorce, each party’s money is also the other party’s money. So, Illinois divorce courts will liberally order one party to pay the other party’s attorney’s fees during the course of an Illinois divorce. In a parentage action, where the parties have a child or children together but have never been married, each party’s money is their own money. Additionally, the statutes that govern attorney’s fees in an Illinois divorce are all contained in the Illinois Marriage and Dissolution of Marriage Act. If the parties aren’t married, they should not be relying on the the “Marriage Act.” Instead, unmarried couples must use the “Illinois Parentage Act of 2015” to determine their rights in court. The Illinois Parentage Act allows for one party to pay the other party’s attorney’s fees (and many other fees). “The court may assess filing fees, reasonable attorney’s fees, fees for genetic testing, other costs, necessary travel expenses, and other reasonable expenses incurred in a proceeding under this Act. The court may award attorney’s fees, which may be paid directly to the attorney, who may enforce the order in the attorney’s own name.” 750 ILCS 46/802 A parentage court is directed to use the exact same factors as the attorney fee section of the Illinois Marriage and Dissolution of Marriage Act. “Any party may be represented by counsel at all proceedings under this Act. Except as otherwise provided in this Act, the court may order, in accordance with the relevant factors specified in Section 508 of the Illinois Marriage and Dissolution of Marriage Act, reasonable fees of counsel, experts, and other costs of the action, pre-trial proceedings, post-judgment proceedings to enforce or modify the judgment, and the appeal or the defense of an appeal of the judgment to be paid by the parties.” 750 ILCS 46/809(emphasis mine) There are no explicit “relevant factors” listed in Section 508 of the Illinois Marriage Act but it can be presumed that the standard for awarding attorney’s fees is the same for Illinois parentage courts as it would be for Illinois divorce courts: “the financial resources of the parties.” “The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order any party to pay a reasonable amount for his own or the other party’s costs and attorney’s fees.” 750 ILCS 5/508(a) The Illinois Parentage Act of 2015 buttresses this […]

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People might hate each other during a divorce but they love their kids. To avoid conflict, parties to a divorce may forgo dividing assets for simply awarding those assets to a child or children. Giving away marital assets to children can be memorialized in an Illinois Marital Settlement Agreement. Realistically, if you gave the marital property away to a child, neither party owns the property and the property does not need to be addressed in the Marital Settlement Agreement. Directions regarding marital property as written in a Marital Settlement Agreement must be enforced. The Marital Settlement Agreement will be read and enforced as a contract. “A marital settlement agreement is construed in the manner of any other contract” Blum v. Koster, 919 NE 2d 333 – Ill: Supreme Court 2009 Leaving Items To Children After Your Death In A Marital Settlement Agreement Not infrequently, parties to a divorce wish that their children receive the marital property…but only after they are done with it. “Done with it” usually means when the parties are dead. Both parties’ wills should be updated to reflect the agreement reached in the Marital Settlement Agreement. If a will is not appropriately updated, Marital Settlement Agreements can be binding on the probate courts which determine the distribution of assets after death. “Where a domestic relations order has been entered, the trial court retains jurisdiction to enforce its order, as further performance by the parties is often contemplated.” Smithberg v. Illinois Municipal Retirement Fund, 192 Ill. 2d 291, 297-98 (2000) An Illinois divorce’s “property settlement agreement defined the nature and extent of the rights and liabilities of the parties with respect to the marital real estate, and [a probate] court [is] required to direct performance of those obligations under the decree so as to fully execute its terms.” In re Estate of Coleman, 395 NE 2d 1209 – Ill: Appellate Court, 2nd Dist. 1979 “[P]roperty issues survive the death of a party where the divorce judgment is entered prior to the party’s death.” Sondin v. Bernstein, 126 Ill.App.3d 703 (1984) Binding Promises To Children In A Marital Settlement Agreement Before the death of a party, leaving items to children (or anyone else) can get really complicated. The obligation to turn over the marital property to the children can be likened to creating a debt to the minor child(ren). Each party is agreeing to satisfy that debt to the child(ren). […]

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Big, bad things can happen in a parent’s life. A parent could lose their job, become seriously ill or go to prison. When something so serious happens in a parent’s life, what happens to their child support obligation? Can child support be put on pause while the parent deals with their unemployment, injury, illness, or incarceration? Abating Child Support In Illinois Lawyer’s love words that only seem to ever apply in a legal sense. One of those words is “abatement.” So, a lawyer will propose to “abate” child support in lieu or saying “terminate” or “pause” child support. Abatement is “the suspension or defeat of a pending action for a reason unrelated to the merits of the claim.” Black’s Law Dictionary (11th ed. 2019) Just because there is a word for something does not make that word good law. Abatement of child support used to be allowed in Illinois via Illinois Supreme Court Rule 296. “Upon written petition of the obligor, and after due notice to obligee (and the Department of Public Aid, if the obligee is receiving public aid), and upon hearing by the court, the court may temporarily reduce or totally abate the payments of support, subject to the understanding that those payments will continue to accrue as they come due, to be paid at a later time. The reduction or abatement may not exceed a period of six months except that, upon further written petition of the obligor, notice to the obligee, and hearing, the reduction or abatement may be continued for an additional period not to exceed six months.” 134 Ill. 2d R. 296(f) The committee comments were even nicer to child support payees who were down on their luck. “This paragraph applies only to the short-term inability of the obligor to pay support due to a temporary layoff from employment or other factors. It recognizes that obligors often become temporarily unemployed, rendering them unable to meet their support obligations. This provision is short of a written modification of the Order for Support. It allows the obligor to petition the court, prior to the filing of a petition for adjudication of contempt, for an opportunity to repay those amounts in small increments after employment is regained. This rule is contrary to the holding of the appellate court in Coons v. Wilder (1981), 93 Ill. App. 3d 127, [ 416 N.E.2d 785,] in which the court stated, `We find no statutory or case […]

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Having an adult disabled child is difficult. Having to drag your child’s parent into court to support that adult disabled child makes it even worse. Caring for an adult child surely reduces the earning capacity of the care-giving parent which makes expensive litigation all the more burdensome without a request for attorney’s fees. Can you ask your child’s other parent for attorney’s fees as well as support for an adult disabled child in an Illinois divorce or parentage action? Supporting An Adult Disabled Child In Illinois Parents of disabled children owe their disabled child support well into adulthood. “The court may award sums of money out of the property and income of either or both parties or the estate of a deceased parent, as equity may require, for the support of a child of the parties who has attained majority when the child is mentally or physically disabled and not otherwise emancipated.” 750 ILCS 5/513.5(a) The Illinois statute provides few guidelines or restrictions as to how much support can be requested in order to support an adult disabled child. “In making awards under this Section, or pursuant to a petition or motion to decrease, modify, or terminate any such award, the court shall consider all relevant factors that appear reasonable and necessary, including:(1) the present and future financial resources of both parties to meet their needs, including, but not limited to, savings for retirement;(2) the standard of living the child would have enjoyed had the marriage not been dissolved. The court may consider factors that are just and equitable;(3) the financial resources of the child; and(4) any financial or other resource provided to or for the child including, but not limited to, any Supplemental Security Income, any home-based support provided pursuant to the Home-Based Support Services Law for Mentally Disabled Adults, and any other State, federal, or local benefit available to the non-minor disabled child.” 750 ILCS 5/513.5(b) Attorney’s Fees And The Support Of An Adult Disabled Child 750 ILCS 5/513.5 provides great latitude to require the parent with more money to support the adult child. 750 ILCS 5/513.5 is silent, however, as to whether the parent with more money should pay for the other parent’s attorney’s fees either during or after the litigation required to determine the support of an adult disabled child. Typically, parties are responsible for their own attorney’s fees. “Illinois follows the ‘American Rule,’ which provides that absent statutory authority […]

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