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Whether it’s medical treatment or managing their money, people who become disabled need someone to help them make big, complicated decisions. In Illinois, the concepts of Power of Attorney and guardianship allow a person to appoint or have appointed for them a person who can handle their affairs. Power of Attorney and guardianship are two Illinois statutory schemes that allow another person to handle the affairs of another with the authority of law. Power of Attorney is “[a]n instrument granting someone authority to act as agent or attorney-in-fact for the grantor” Black’s Law Dictionary (11th ed. 2019) In a Power of Attorney, all of the power to appoint an agent is with the individual who is appointing that agent. The Illinois Power Of Attorney Act “recognizes that each individual has the right to appoint an agent to make property, financial, personal, and health care decisions for the individual but that this right cannot be fully effective unless the principal may empower the agent to act throughout the principal’s lifetime, including during periods of disability, and have confidence that third parties will honor the agent’s authority at all times.” 755 ILCS 45/2-1 The power of attorney may even extend past the point of the individual being able to make their own decisions (which is why it can be confused with guardianship because those are the same conditions). “Unless the agency states an earlier termination date, the agency continues until the death of the principal, notwithstanding any lapse of time, the principal’s disability or incapacity or appointment of a guardian for the principal after the agency is signed.” 755 ILCS 45/2-5 “All acts of the agent within the scope of the agency during any period of disability, incapacity or incompetency of the principal have the same effect and inure to the benefit of and bind the principal and his or her successors in interest as if the principal were competent and not a person with a disability.”  755 ILCS 45/2-6 Power of Attorney exists independently of a court proceeding and can only rarely be undone by a court. “The statutory scheme makes it clear that this agency is strictly protected from judicial intervention except under a very narrow set of rigid procedural circumstances.” In re Estate of Beetler, 2017 IL App (3d) 160248 The procedure to gain Illinois court supervision of a power of attorney is explicit. “(a) Upon petition by any interested person (including […]

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Divorce is a big step. Many couples will separate with the explicit option that they may, in fact, get back together. A non-permanent separation is called a trial separation. Some therapists will recommend trial separation in order to allow each member of the marriage think clearly about the future of the relationship. Trial separations, by their nature, may end in divorce. “Defendant suggested a trial separation, but her husband stated that if they were going to be separated, he would prefer a divorce.” Harris v. Harris, 360 NE 2d 113 – Ill: Appellate Court, 2nd Dist. 1977 What risks are there in engaging in a trial separation before a divorce? All Assets And Debts Acquired By Either Party Are Marital Until The Divorce Is Final In Illinois. Illinois divorce courts can only divide property that is classified as “marital”. Marital property is any property (or debt) which was acquired during the entire marriage. “‘[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) Without filing a petition for dissolution of marriage or a petition for legal separation, a trial separation has no impact on division of assets in an Illinois divorce. “To hold that the parties did not accrue marital property after the date of [mere] physical separation would be to recognize “common law divorce,” and the law and public policy do not support such a result.” In re Marriage of Morris, 640 NE 2d 344 – Ill: Appellate Court, 2nd Dist. 1994 The assets you accumulate during a trial separation will be divided if you eventually get divorced. Likewise, the debts your spouse accumulates during the trial separation will be deemed marital assets and you will be responsible for a portion of those debts. Trial Separation May Constitute An Agreement To Waive Maintenance Every Illinois divorce court must consider maintenance (formerly known as alimony) “In a proceeding for dissolution of marriage, legal separation, declaration of invalidity of marriage, or dissolution of a civil union, a proceeding for maintenance following a legal separation…the court may grant a maintenance award for either spouse in amounts and for periods of time as the court deems […]

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In a perfect world there would be no divorce lawyers. At the end of their relationship, people would simply go to a mediator who would calmly and rationally divide their assets, calculate support and determine parenting time. While some divorcing couples do use mediators to finalize the terms of their divorce, the majority of divorcing people (in my experience) use divorce lawyers to enforce their rights under the law. When is divorce mediation a viable option for divorcing Illinois couples? When is divorce mediation not recommended for divorcing Illinois couples? When Is Divorce Mediation Not Recommended In Illinois? Mediation only works if both parties are being completely transparent. A mediator cannot divide assets that one party is not aware of. A mediator cannot calculate support if one of the party’s incomes is not completely known. A mediator cannot even advise as to what a divorcing person’s rights are (even though they could look them up on my website). “No person shall receive any compensation directly or indirectly for any legal services other than a regularly licensed attorney” 705 ILCS 205/1 In reality, the most a mediator can provide two people trying to settle their divorce in Illinois is a “memorandum of understanding” memorializing the meeting of the minds that the parties arrived at. That memorandum of understanding can then be formalized by an attorney or by the parties themselves as a Marital Settlement Agreement and/or an Agreed Allocation of Parenting Time and Parental Responsibilities. The subsequent steps to actually “prove up” the divorce through the courts must then be taken, again, without a mediator. The memorandum of understanding is not an actual agreement. The memorandum of understanding is not even binding on the parties. Every county has its own rules about mediation. Cook County defines mediation explicitly. “”Mediation” means a non-binding confidential process by which a neutral third party, selected by the parties to the case or selected by or with the assistance of the court, assists the parties in reaching a mutually acceptable agreement ” Rule 13.4(e) While mediation is “non-binding”, it’s also “confidential.” “Mediation communications shall be confidential and privileged, not subject to discovery or admissible in evidence in accordance with the provisions of the Uniform Mediation Act, 710 ILCS 35/1, et seq.” Cook County Rule 13.4(e)(ix)(a) A party to a divorce, cannot even use some of the mediated agreement or communications that let to the agreement in a court […]

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There is a lot of folk wisdom out there that people assume is true with little to no evidence beyond “it sounds true.” One presumption is that if a man is listed on a birth certificate as the child’s father, he will be deemed the father of that child. In Illinois, while the listing of a father on a birth certificate validates that the man is the father of the child, a father’s name on a birth certificate does not necessarily establish the rights and responsibilities of fatherhood in Illinois. In Illinois, birth certificates are filled out by hospital officials. “When a birth occurs in an institution [like a hospital], the person in charge of the institution or his designated representative shall obtain and record all the personal and statistical particulars relative to the parents of the child that are required to properly complete the live birth certificate” 410 ILCS 535/12(2) A hospital official with a form does not determine who the father of a child is. Illinois law determines who is the parent of the child and that determines what goes on an Illinois birth certificate. For women, the law as to parentage is fairly simple: “The parent-child relationship is established between a woman and a child by:(1) the woman having given birth to the child, except as otherwise provided in the Gestational Surrogacy Act ;(2) an adjudication of the woman’s parentage;(3) adoption of the child by the woman;(4) a valid gestational surrogacy arrangement that complies with the Gestational Surrogacy Act or other law; or(5) an unrebutted presumption of the woman’s parentage of the child under Section 204 of this Act.” 750 ILCS 46/201(a) For a man, the parentage is also simple…if the man is married to the woman who just gave birth, that man is the father of that child. “A person is presumed to be the parent of a child if:(1) the person and the mother of the child have entered into a marriage, civil union, or substantially similar legal relationship, and the child is born to the mother during the marriage, civil union, or substantially similar legal relationship” 750 ILCS 46/204(a) If mom and dad are not married, the dad can be found to a parent if he signs a Voluntary Acknowledgment of Paternity. “The parent-child relationship is established between a man and a child by: … (2) An effective voluntary acknowledgment of paternity by the man under Article 3 of this […]

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I recently saw an advertisement on Facebook that said, “Protect your assets in a divorce with a trust.” Hmm. I am a divorce lawyer who is obsessed with divorce law and strategy. Why had I not heard that a pending divorce could be resolved by simply transferring all of one’s property into a trust? What sounds too good to be true…usually is. Upon further research, I discovered that you can remove marital assets from the marital estate, rendering the assets untouched by a later divorce, by putting those marital assets in a trust…but only if you have NO ill will in your heart (explained later). What Is A Trust In Illinois “”Trust” means…a trust created by will, deed, agreement, declaration, or other written instrument” 760 ILCS 3/103(37) “A trust may be created by:   Property transferred to a trust is now the property of the trust not the property of the person who transferred the property to the trust (until the trust is revoked). Therefore, that property cannot be divided in an Illinois divorce because the person no longer owns the property. The trust owns the formerly marital property after the transfer.   Division Of Assets In An Illinois Divorce Illinois divorce courts “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) Before there is any question as to whether property is marital and thus, divisible in an Illinois divorce, the question is whether the property is even subject to the divorce. Property Held By A Trust Is Not Marital Property “The issue is…whether the assets in [a]…trusts is before the court in the first instance and therefore subject to distribution.” LaRocque v. LaRocque (In re Marriage of LaRocque), 107 N.E.3d 349, 366 (Ill. App. Ct. 2018) Non-marital property “property acquired by gift, legacy or descent or property acquired in exchange for such property” 750 ILCS 5/503(a)(1) “Section 503(a)(1) may apply where a spouse receives property as his or her share of a trust.” In re Marriage of Asta and Pappas, 56 NE 3d 1088 – Ill: Appellate […]

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The prospect of divorce is frightening. Splitting assets and seeing your children half the time (or less) are harrowing possibilities but the continuing obligation of maintenance (formerly known as alimony) seems the most daunting. Before the divorce, you were supporting one household with two incomes. After the divorce, you may be expected to support two households (your household and your ex-spouse’s) on one income. How do you avoid the additional, ongoing obligation of maintenance during and after your Illinois divorce? Who Has To Pay Maintenance In Illinois? Either party may request maintenance in an Illinois divorce. “[T]he court may grant a maintenance award for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct” 750 ILCS 5/504 The first step a court does is determine whether maintenance is even appropriate for the divorcing couple. “The court shall first make a finding as to whether a maintenance award is appropriate, after consideration of all relevant factors, including:(1) the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance as well as all financial obligations imposed on the parties as a result of the dissolution of marriage;(2) the needs of each party;(3) the realistic present and future earning capacity of each party;(4) any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage;(5) any impairment of the realistic present or future earning capacity of the party against whom maintenance is sought;(6) the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment;(6.1) the effect of any parental responsibility arrangements and its effect on a party’s ability to seek or maintain employment;(7) the standard of living established during the marriage;(8) the duration of the marriage;(9) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and the needs of each of the parties;(10) all sources of public and private income including, without limitation, disability and retirement income;(11) the tax consequences to each party ;(12) contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse;(13) any valid agreement of the parties; and(14) any other factor that the court […]

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Lawyers have the enormous and independent power of subpoena. Lawyers can issue subpoenas and those subpoenas have the authority of the court. The subpoena must be answered under the penalty of contempt of court. “[S]ubpoenas may be issued by an attorney admitted to practice in the State of Illinois who is currently counsel of record in the pending action. The subpoena may command the person to whom it is directed to produce documents or tangible things which constitute or contain evidence relating to any of the matters within the scope of the examination permitted under these rules” Ill. Sup. Ct. R. 204(a)(1) When someone receives a subpoena, they can be called a deponent. The deponent must provide the documents requested unless someone (not necessarily the subpoena receiver) file a motion to quash that subpoena. If the subpoena is uncontested, the subpoena answerer (the deponent) can get in big trouble (i.e. at least be ordered to pay attorney’s fees). “If a party or other deponent refuses…to comply with a request for the production of documents or tangible things or inspection of real property…the party serving the request may on like notice move for an order compelling an answer or compliance with the request. If the court finds that the refusal or failure was without substantial justification, the court shall require the offending party or deponent, or the party whose attorney advised the conduct complained of, or either of them, to pay to the aggrieved party the amount of the reasonable expenses incurred in obtaining the order, including reasonable attorney’s fees.” Ill. Sup. Ct. R. 219 Deponents already received a subpoena. Deponents do NOT want any more problems. So, deponents usually and quickly provide the requested documents to the party that issued the subpoena. In theory, the deponent should file a certificate of compliance with the court…but I’ve never seen a third-party deponent do that in my 18 years of practice. “That party or attorney shall serve all requesting parties of record at least three days prior to the scheduled deposition, with true and complete copies of all documents, and shall make available for inspection tangible things, or other materials furnished, and shall file a certificate of compliance with the court.” Ill. Sup. Ct. R. 204(a)(4) The deponent does NOT have to give the requested documents to all parties, just the party that requested the documents. The party that requested the documents […]

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There is much discussion as to both the perception of and the strategic impact of filing first in an Illinois divorce. Filing first in an Illinois divorce case is NOT always the smart move, however. There are numerous disadvantages to filing first in an Illinois divorce case. If you are not filing for divorce first, you do NOT know when your spouse will file for divorce. The only thing you know is that the filing will happen in the future. A later filing date may be in your interest if you expect to receive maintenance (formerly known as alimony). The duration of maintenance payments is based on the length of the marriage UP TO the date of the filing of the petition for dissolution of marriage. Maintenance “shall be calculated by multiplying the length of the marriage at the time the action was commenced by whichever of the following factors applies: less than 5 years (.20); 5 years or more but less than 6 years (.24); 6 years or more but less than 7 years (.28); 7 years or more but less than 8 years (.32); 8 years or more but less than 9 years (.36); 9 years or more but less than 10 years (.40); 10 years or more but less than 11 years (.44); 11 years or more but less than 12 years (.48); 12 years or more but less than 13 years (.52); 13 years or more but less than 14 years (.56); 14 years or more but less than 15 years (.60); 15 years or more but less than 16 years (.64); 16 years or more but less than 17 years (.68); 17 years or more but less than 18 years (.72); 18 years or more but less than 19 years (.76); 19 years or more but less than 20 years (.80). For a marriage of 20 or more years, the court, in its discretion, shall order maintenance for a period equal to the length of the marriage or for an indefinite term.” 750 ILCS 5/504(b-1)(1)(B) Likewise, if your spouse is accumulating assets, those assets are considered marital and, thus, divisible until the day you are divorced. “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) The later the […]

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People break up. But, often one person is not ready for the break up. It is one thing to call or text a former partner to get their attention. It is, frankly, extreme to appear in person at that person’s residence or workplace when uninvited. A polite “no thank you” will, hopefully, be observed and respected by the former partner who appeared at your home or workplace. If not, a call to the police will drive the point home. Afterwards, a petition for an order of protection can be filed to emphasize that you do NOT want to see the person again and provide a criminal penalty if your former partner appears at your home or workplace. Orders of Protection And Trespassing In Illinois An order of protection in Illinois uses backwards-looking logic. Were you abused? Then you need 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 Orders of protection are only for family, household members and former relationships. The Illinois Domestic Violence Act defines a “[f]amily or household member” to include “persons who have or have had a dating or engagement relationship.” 750 ILCS 60/103(6) “’Abuse’ means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation” 750 ILCS 60/103(1) Trespassing will almost certainly qualify as “abuse” for the purposes of obtaining an order of protection in Illinois because trespassing is defined as a form of 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. Unless the presumption is rebutted by a preponderance of the evidence, the following types of conduct shall be presumed to cause emotional distress:(i) creating a disturbance at petitioner’s place of employment or school;(ii) repeatedly telephoning petitioner’s place of employment, home or residence;(iii) repeatedly following petitioner about in a public place or places;(iv) repeatedly keeping petitioner under surveillance by remaining present outside his or her home, school, place of employment, vehicle or other place occupied by petitioner or by peering in petitioner’s windows;(v) improperly concealing a minor child from petitioner, repeatedly threatening to improperly remove a minor child of petitioner’s from the jurisdiction or from the physical care of petitioner, repeatedly threatening to conceal a minor […]

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When considering a divorce, people move money around or even hide assets. Real estate cannot be hidden or moved, however, because you know the address. Can real estate be sold by one spouse without the permission of the other spouse? Property in Illinois can only be transferred if the transfer is by written contract or deed. “No action shall be brought to charge any person upon any contract for the sale of lands, tenements or hereditaments or any interest in or concerning them, for a longer term than one year, unless such contract or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing, signed by such party.” 740 ILCS 80/2 A written document transferring real estate in Illinois must be a deed which complies with Illinois’ Conveyances Act.   “Every deed in substance in the above form, when otherwise duly executed, shall be deemed and held a conveyance in fee simple, to the grantee, his heirs or assigns, with covenants on the part of the grantor, (1) that at the time of the making and delivery of such deed he was the lawful owner of an indefeasible estate in fee simple, in and to the premises therein described, and had good right and full power to convey the same; (2) that the same were then free from all incumbrances; and (3) that he warrants to the grantee, his heirs and assigns, the quiet and peaceable possession of such premises, and will defend the title thereto against all persons who may lawfully claim the same. Such covenants shall be obligatory upon any grantor, his heirs and personal representatives, as fully and with like effect as if written at length in such deed.” 765 ILCS 5/10 If both spouses are on the deed, then both spouses have to sign the deed to transfer the property to a third party. A Spouse Cannot Sell A Homestead Without The Other Spouse’s Permission In Illinois If the property is the marital home, then the property is considered a “homestead.” A spouse cannot sell a home their spouse is living in (the homestead). “Neither the husband nor wife can remove the other or their children from their homestead without the consent of the other, unless the owner of the property shall, in good faith, provide another […]

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At the moment an Illinois divorce is registered, the final court documents capture a moment in time. A moment where both parties are unmarried…but they won’t be for long. People who get divorced usually get married again. A remarriage means an entangling of a spouse’s finances with their new spouse. How does a new spouse’s income affect maintenance, child support and other matters after an Illinois divorce? Initially, a Marital Settlement Agreement and an Allocation of Parenting Time and Parental Responsibilities will govern the divorced couple. As time passes, either couple may petition for a modification of the terms of either of those two documents. Division of assets will have been finalized in the initial divorce documents so the only thing to modify is the remaining child support and maintenance (formerly known as alimony) provisions. “[T]he provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification.” 750 ILCS 5/510(a) A modification of support shall only be made“upon a showing of a substantial change in circumstances” 750 ILCS 5/510(a)(1) Is A New Spouse A Substantial Change In Circumstances For Purposes of Support Modification In Illinois? A remarriage of either parent will probably qualify as a substantial change in circumstances and thus allow the Illinois divorce court to consider a modification of support. “To determine whether there has been a substantial change in circumstances, the court should take a holistic view of the parent’s financial position and consider all financial resources, including assets and even the financial status of a new spouse.” Verhines, 2018 IL App (2d) 171034 ¶ 81 A New Spouse’s Income And Child Support In Illinois In Illinois child support is calculated using both parent’s incomes. “Computation of basic child support obligation. The court shall compute the basic child support obligation by taking the following steps: (A) determine each parent’s monthly net income; (B) add the parents’ monthly net incomes together to determine the combined monthly net income of the parents; (C) select the corresponding appropriate amount from the schedule of basic child support obligations based on the parties’ combined monthly net income and number of children of the parties;  and (D) calculate each parent’s percentage share of the basic child support obligation.” 750 ILCS 5050(a)(1.5) So, either parent having a new spouse would be additional income into that household and, […]

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A marriage with a homemaker is often a symbiotic relationship where everyone is happier for it…until they’re not. After a divorce, there can be no further cooperation. The homemaker either has to get a job, request alimony, child support and/or a greater share of marital assets. During an Illinois divorce, stay at home parents, homemakers and their spouses face special considerations as their lawyers and the divorce courts try to rebalance their now separate lives. “Marriage is a partnership, not only morally, but financially. Spouses are coequals, and homemaker services must be recognized as significant when the economic incidents of divorce are determined. Petitioner should not be penalized for having performed her assignment under the agreed-upon division of labor within the family. It is inequitable upon dissolution to saddle petitioner with the burden of her reduced earning potential and to allow respondent to continue in the advantageous position he reached through their joint efforts.” In re Marriage of Hart, 551 NE 2d 737 – Ill: Appellate Court, 4th Dist. 1990 (on dissent)  Homemakers and Maintenance (Formerly Known As Alimony) In An Illinois Divorce In almost every case involving a homemaker or stay at home parent, there will be a maintenance award from the working spouse to the non-working spouse. The first step in the analysis of awarding maintenance in an Illinois divorce is determining if maintenance SHOULD be awarded. In order for the court to allow maintenance, the court must consider a series of factors, many of which strongly imply that a homemaker should be awarded maintenance. Those factors include: • The income and property of each party• The realistic present and future earning capacity of each party• Any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having foregone or delayed education, training, employment or career opportunities due to the marriage• Any impairment of the realistic present or future earning capacity of the party against whom maintenance is sought• The time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether the party is able to support himself or herself through appropriate employment or any parental responsibility arrangements and its effect on the party seeking employment• The standard of living established during the marriage• The duration of the marriage.• The age, health, station occupation, amount and sources of […]

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In America, the ability to own a home is part of the American Dream. In furtherance of this, there are numerous laws which encourage home ownership such as the mortgage interest deduction and the concept of the homestead exemption. What Is A Homestead in Illinois? A homestead is a building or collection of buildings where people actually live. “Homestead is a freehold estate in land, the purpose of which is ‘to insure to the family the possession and enjoyment of a home ” Willard v. Northwest National Bank of Chicago, 137 Ill. App. 3d 255, 264 (1985) Labelling a house a homestead provides “a shelter beyond the reach of his improvidence or financial misfortune.” People v. One Residence Located at 1403 East Parham Street, 251 Ill. App. 3d 198, 201 (1993) Homestead In Illinois When You Are Married In Illinois, labelling a house a homestead, keeps one member of the couple from evicting the other party from the home. “Neither the husband nor wife can remove the other or their children from their homestead without the consent of the other, unless the owner of the property shall, in good faith, provide another homestead suitable to the condition in life of the family; and if he abandons her, she is entitled to the custody of their minor children, unless a court of competent jurisdiction, upon application for that purpose, shall otherwise direct.” 750 ILCS 65/16 In Illinois, “where a homestead exists neither can change the residence of the other from that homestead without such other’s consent or unless another suitable homestead is provided.” Brod v. Brod, 390 Ill. 312, 324 (Ill. 1945) The concept of the homestead means that the married person who owns a property cannot simply put their spouse out on the street. The married person who owns property must find their spouse suitable housing…at least until they’re no longer married and are, in fact, divorced. If you bought or sold a house in Illinois while married, you are probably already familiar with this concept as you had to get your spouse’s signature for a waiver of their homestead rights. “No deed or other instrument shall be construed as releasing or waiving the right of homestead, unless the same shall contain a clause expressly releasing or waiving such right. And no release or waiver of the right of homestead by the husband or wife shall bind the other spouse unless […]

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The default rule in an Illinois divorce is whatever you came into a marriage with…you can leave the marriage with. The distinction between premarital and marital (thus, divisible) assets is crucial to determining who gets what in an Illinois divorce. The subrule is that premarital assets that become blended or commingled with marital assets, those premarital assets take on the marital character and become divisible…much to the chagrin of the person who used to own the formerly premarital asset. Transmutation In An Illinois Divorce This blending of assets is called transmutation. Transmutation is “A change in the nature of something; esp., in family law, the transformation of separate property into marital property, or of marital property into separate property.”  Black’s Law Dictionary (11th ed. 2019) “Transmutation is based on the presumption that the owner of the nonmarital property intended to make a gift of it to the marital estate.” In re Marriage of Vondra, 2016 IL App (1st) 150793 “The placing of nonmarital property in joint tenancy or some other form of co-ownership with the other spouse will raise a presumption that a gift was made to the marital estate, and the property will become marital property.” In re Marriage of Benz, 165 Ill. App. 3d 273, 280 (Ill. App. Ct. 1988) Once the transmutation occurs, is the property transmuted now completely divisible in an Illinois divorce? Perhaps. There may be a way to claw back the property into a non-marital, non-divisible status: by making a conversion claim. A Conversion Claim As A Way To Undo Transmutation A claim is “the assertion of an existing right” Black’s Law Dictionary (11th ed. 2019) An Illinois resident’s rights are found in both the constitutions, the statutes and the case law. The petition for dissolution of marriage is only one claim. There are many other claims available to a person getting divorced in Illinois. Conversion is a separate claim, a separate existing right that a divorcing Illinois resident can invoke. “To state a cause of action for conversion, a plaintiff must prove that: (1) she has a right to the property at issue; (2) she has an absolute and unconditional right to the immediate possession of that property; (3) the defendant wrongfully and without authorization assumed control, dominion, or ownership over the property; and (4) she made a demand for the return of the property.” Weisberger v. Weisberger, No. 1-10-1557, 12-13 (Ill. App. Ct. 2011) It is not difficult […]

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The family law and divorce system in Illinois was written and promulgated imagining reasonable, rational parties unwinding their lives in a logical manner. We all get emotional during a breakup and the family law system is set up to be slow but fair. This way our emotions don’t get the better of us. But, there is a big difference between being emotional and being mentally ill.  When someone is mentally ill and they are getting divorced, the other spouse should be aware of the precautionary measures that Illinois divorce law makes available. So, what do you need to know about mental illness and divorce in Illinois? Is Mental Illness Or “Acting Crazy” A Reason To Get A Divorce In Illinois? Clients always tell me about their unstable spouse while using words like “crazy” and “sick”. These stories of a spouse’s mentally erratic behavior can affect ancillary issues such as child custody, capacity to earn income and other final items in the divorce judgment. But, a spouse’s mental illness, in itself is not a cause for divorce. Illinois has only one cause for divorce, irreconcilable differences. So, you don’t need to identify your spouse’s exact personality disorder. An Illinois divorce court will believe you don’t get along anymore. After all, you filed for divorce. That’s proof enough in itself. Protecting Yourself From A Mentally Ill Spouse During An Illinois Divorce If your spouse has hurt you, you need to file a motion for a petition for an order of protection. If your spouse’s behavior is so erratic that you believe they could be violent and hurt you, you should file a petition for an order of protection. “A petition for an order of protection shall be in writing and verified or accompanied by affidavit and shall allege that petitioner has been abused by respondent, who is a family or household member.” 750 ILCS 60/203(a) “Abuse” sounds pretty broad and the Illinois statute defines it really broadly. “Abuse” means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation” 750 ILCS 60/103(1) Realistically, a mentally ill person’s behavior could fall into one of these descriptions several times a day. The history of mental illness and those abusive effects can also be presented to the court. “the nature, frequency, severity, pattern and consequences of the respondent’s past abuse, neglect or exploitation of the petitioner or any family or household […]

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Whether the economy is booming, inflation is increasing or either former partner has devoted themselves to their job after their divorce…people’s incomes go up. Income is the determinator for both child support and maintenance in an Illinois divorce. When income goes down, parties to a divorce either need more support or they cannot afford to pay the current child support and/or maintenance amount. However, what happens if a party to a divorce income goes up? Does child support and/or maintenance go up if a party’s income increases? How Do You Know If Your Spouse’s Income Has Increased After An Illinois Divorce? Typically, a Marital Settlement Agreement will require the parties to exchange tax information to verify their current incomes. If not, a party can allege an increase in income in a motion to modify support based on a presumed increase in income. At that point, the other party must disclose their income by tendering a fresh financial affidavit. “In all post-judgment proceedings in which a party is seeking to establish, modify or enforce an order of maintenance, child support, support for educational expenses pursuant to Section 513 of the Illinois Marriage and Dissolution of Marriage Act,  support for a non-minor child with a disability pursuant to Section 513.5 of the Illinois Marriage and Dissolution of Marriage Act, or attorney’s fees or costs, the parties shall exchange a completed  “Financial Affidavit” unless either party files a written objection with the court and shows good cause why such exchange should not be required.” Cook County Rule 13.3.1(b) The financial affidavit must include supporting documents such as tax returns, W2s, paychecks and bank statements to verify the other party’s income. Modifying Maintenance After An Increase in Income After An Illinois Divorce Maintenance (formerly known as alimony) will have been set in the final Marital Settlement Agreement. That maintenance amount can only be modified after a court finds a substantial change in circumstances. “[M]aintenance may be modified or terminated only upon a showing of a substantial change in circumstances.” 750 ILCS 5/510(a-5) A substantial change in circumstances for the purposes of support “means that either the needs of the spouse receiving maintenance or the ability of the other spouse to pay that maintenance has changed.” In re Marriage of Anderson, 951 NE 2d 524 – Ill: Appellate Court, 1st Dist., 5th Div. 2011 The party requesting the modification must prove the substantial change in […]

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Nothing pours cold water on the hopes and dreams of an upcoming wedding ceremony like a prenuptial agreement. Prenuptial agreements are not fun to think or talk about. A prenuptial agreement literally anticipates a divorce…which is awful. Still, a prenuptial agreement may save both you and your soon-to-be-spouse headaches and heartaches. A prenuptial agreement that specifies that Illinois law will be applied in any enforcement action can virtually guarantee the result in any possible divorce. If You Get Divorced In Illinois Without A Prenuptial Agreement Whether you know it or not, if you live in Illinois you already have a prenuptial agreement. If you don’t have a prenuptial agreement and you get divorced in Illinois, you have a default prenuptial agreement in the Illinois Marriage and Dissolution of Marriage Act(IMDMA). The IMDMA gets modified all the time by the Illinois legislature and by Illinois case law decisions which determine the IMDMA’s interpretation. You will never know what the IMDMA will contain on the day of your divorce filing…until it is too late.   Even if you divorce without a prenuptial agreement, Illinois law allows individual judges enormous leeway to make decisions about you and your spouse’s life. “[T]he trial court possesses the inherent authority to control…the course of litigation” J.S.A. v. M.H., 863 N.E.2d 236, 244-45 (Ill. 2007) In Illinois, marital assets are NOT divided 50/50. In Illinois, marital assets are divided equitably. “The Act does not require an equal division of marital property, but an equitable division” In re Marriage of Jones, 543 NE 2d 119 – Ill: Appellate Court, 1st Dist. 1989 “Equitable” means “Just, fair, and right, in consideration of the facts and circumstances of the individual case.” Black’s Law Dictionary (10th ed. 2014) Maintenance, formerly known as alimony, is determined by a formula under the IMDMA: 33% of the big earner’s gross income less 25% of the small earner’s gross income, not to exceed 40% of the gross total incomes of both parties. The IMDMA does not require Illinois divorce judges to apply those guidelines if the judge does not find the guidelines to be fair in the case at hand. “Only if the court finds that a maintenance award is appropriate, the court shall order guideline maintenance in accordance with paragraph (1) or non-guideline maintenance in accordance with paragraph (2)” 750 ILCS 5/504(b-1) Paragraph 2 then specifies that the court need only have a reason, any reason, […]

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Every marriage has roles and responsibilities.   Often, one party to a marriage ends up being the breadwinner or sole earner in the house while the other party takes care of the home and possibly the children.  So much of an Illinois divorce’s mechanics are based on the incomes of the parties that a non-working spouse becomes the most salient issue to a case.  So, what can you do if your spouse doesn’t work and you want a divorce in Illinois? Maintenance/Alimony in Illinois With A Non-working Spouse The biggest income related issue in an Illinois divorce is maintenance (formerly known as alimony) In Illinois, when making a temporary or permanent maintenance award, the court must first make initial considerations to determine that the non-working spouse is even entitled to maintenance. “The court shall first make a finding as to whether a maintenance award is appropriate, after consideration of all relevant factors, including:” 750 ILCS 5/504(a) The income and property of each party The realistic present and future earning capacity of each party Any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having foregone or delayed education, training, employment or career opportunities due to the marriage Any impairment of the realistic present or future earning capacity of the party against whom maintenance is sought The time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether the party is able to support himself or herself through appropriate employment or any parental responsibility arrangements and its effect on the party seeking employment The standard of living established during the marriage The duration of the marriage. The age, health, station occupation, amount and sources of income, and sources of income, vocational skills, employability, estate liabilities, and the needs of each party All sources of public and private income including, without limitation, disability and retirement income Contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse Any valid agreement of the parties Any other factor that the court expressly finds to be just and equitable These are just the factors to consider if the court is going to award maintenance. The court can consider one or all of them when deciding “is this a maintenance case?” After a quick count, a non-working spouse could be fit into 9 of […]

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Whether it’s the stress of the divorce or a long simmering issue, drugs and alcohol are frequent issues in Illinois divorces. Many other issues in divorce are black and white issues; he hit you or he didn’t, she made the money or she didn’t, his schedule allows for time with the kids or it does not.  Drugs and alcohol, however, seem to be a big “gray area” in our society…and it’s getting grayer. Almost everyone drinks.  The divorce judge probably drinks.  So how much alcohol is too much? And who even keeps track of that? Marijuana was illegal until just a few months ago and now marijuana is legal in Illinois…if you buy it legally. So, does it matter if someone smokes marijuana in the eyes of an Illinois divorce judge?  Does it matter where the marijuana came from? How do you even quantify the amount smoked? Prescription drugs should be okay, as long as they’re taken as prescribed. But even if they are, a prescription is a doctor’s official opinion that something is wrong.  Can prescription drugs affect an Illinois divorce?  The real issue is addiction.  If drugs and alcohol weren’t addictive, people would stop using them for the sake of their marriage and their children.  So, if you’re divorcing an alcoholic or divorcing a drug addict, you need to know what Illinois divorce laws are available to protect you and your children. These same Illinois divorce laws are very powerful, and if you’re accused of being an addict, you need to protect yourself appropriately.  How Drugs And Alcohol Do Not Affect An Illinois Divorce Drugs, alcohol and personality disorders go hand in hand with divorce.  Neither the judge nor the legal system will, in the end, label one party an “alcoholic” or a “drug addict” and make some final conclusion that one party was the “good person” and the other party was the “bad person.” Any attempt at character assassination in a divorce court will usually be met with an eye roll from the judge.  No description of binge drinking, bong smoking, or hard drugs will shock an experienced Illinois divorce judge.  The question is “how do drugs and alcohol effect the issues in a divorce?” If the marriage had no children…drugs and alcohol probably have zero impact on an Illinois divorce.  But in extreme cases of addiction, the issue of drugs and/or alcohol may hang over […]

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If knowledge is power then giving away knowledge is equivalent to giving away power…which people never want to do. In order to preserve control after revealing a business secret, employers and business partners often require their employees or coworkers to enter into nondisclosure agreements (NDAs). A nondisclosure agreement is “a contract or contractual provision containing a person’s promise not to disclose any information shared by or discovered from a holder of confidential information, including all internal or proprietary matters.” Black’s Law Dictionary (11th ed. 2019) Nondisclosure agreements are everywhere now. The signers to a nondisclosure agreement are bound by that agreement to not disclose to third-parties whatever particular information is covered by that agreement. Sometimes, those signers get divorced and their spouses want to exactly what those valuable secrets are…because they might be entitled to half of them. Nondisclosure Agreements And Discovery In An Illinois Divorce In an Illinois divorce, those spouses are entitled to ask for anything in the divorce litigation process. “[A] party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action… including the existence, description, nature, custody, condition, and location of any documents or tangible things, and the identity and location of persons having knowledge of relevant facts” Ill. S. Ct. R. 201(b) “The purposes of litigation are best served when each party knows as much about the controversy as is reasonably practicable.” Mistler v. Mancini, 111 Ill. App. 3d 228, 231 (Ill. App. Ct. 1982) The production of any information covered by the nondisclosure agreement will likely violate the nondisclosure agreement. Hopefully, the nondisclosure agreement includes a clause that governs what happens if non-disclosable information is revealed to a third party through litigation. If so, the party disclosing the information should follow that clause’s instructions. Usually, a clause in an nondisclosure agreement that addresses litigation asks the parties to request a protective order from the court. Protective Orders And Nondisclosure Agreements In An Illinois Divorce “Protective Orders. The court may at any time on its own initiative, or on motion of any party or witness, make a protective order as justice requires, denying, limiting, conditioning, or regulating discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or oppression.” Ill. S. Ct. R. 201(c)(1) A protective order issued by a court will read “all information supplied during discovery in the lawsuit that shall be designated by the party or person producing it […]

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In the movie, “Intolerable Cruelty,” George Clooney play Miles Massey, a divorce lawyer who had crafted “the Massey pre-nup” a prenuptial agreement template that had never been successfully challenged. While such an agreement may sound mystical, unchallengeable prenuptial agreements get written every day…so long as they have the right clauses. One of the most important clauses in a prenuptial agreement is a “waiver of disclosure.” What Is A Waiver Of Disclosure In An Illinois Prenuptial Agreement A waiver of disclosure typically reads as follows: “Waiver of additional financial information. The parties hereto each voluntarily and expressly waive any right to disclosure of the property, financial position or obligations of the other beyond the disclosures provided herein and by the attachments hereto.” The reason that a waiver of disclosure must be included is that failure to properly disclose financial assets can render a prenuptial agreement void in Illinois. “(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that: (1) that party did not execute the agreement voluntarily; or (2) the agreement was unconscionable when it was executed and, before execution of the agreement, that party: (i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party” 750 ILCS 10/7(a)(2)(i) It makes sense that a person getting married should at least know what assets they are agreeing to NEVER have a claim to by signing a prenuptial agreement. The disclosure is usually a referenced exhibit on the prenuptial agreement. The exhibit is simply a list of the parties assets with associated estimated values of each asset. Waiving The Disclosure Of Assets In An Illinois Prenuptial Agreement The right to be “provided a fair and reasonable disclosure of the property or financial obligations of the other party” can be waived by agreement. An Illinois prenuptial agreement without property disclosure is only void if it “did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided” 750 ILCS 10/7(a)(2)(iii) “Under the Illinois Premarital Agreement Act, the only way that [the petitioner] could have been relieved of his statutory obligation of providing a fair and reasonable disclosure was by [the respondent] voluntarily and expressly waiv[ing], in writing, any right to disclosure of the property or financial obligations of [the respondent] beyond the disclosure provided…[E]ach party to a premarital […]

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There are three quantifiable inputs in an Illinois divorce: 1) Time the children currently spend with each parent, 2) Marital assets and debts of the couple, and 3) The income of each party. Everything else that determines the results of an Illinois divorce can be described qualitatively in words but not quantitatively in numbers. This means the few solid numbers that a divorce litigant has available to them must be the bedrock of their divorce case. Unfortunately, divorcing couples 1) play games with parenting time before court orders are established, 2) hide assets while revealing secret debts and 3) stop making as much money as they should. Original parenting schedules always get revealed through a Guardian Ad Litem’s investigation. The true marital assets are revealed through forensic accounting. But, how do you prove that someone is not really earning the income that they’re supposed to? Why Do You Need To Know Both Parties’ Incomes In An Illinois Divorce? Both parties’ incomes determine the amount of child support, maintenance (formerly known as “alimony”) and children’s expenses. In Illinois, “[t]he court shall compute the basic child support obligation by…determin[ing] each parent’s monthly net income” 750 ILCS 5/505(A)(1.5) In Illinois, “[t]he court shall first make a finding as to whether a maintenance award is appropriate, after consideration of all relevant factors, including:(1) the income and property of each party” 750 ILCS 5/503(a) In Illinois, children’s “expenses shall be prorated in proportion to each parent’s percentage share of combined net income” 750 ILCS 5/505(a)(3.7)(B) Therefore, it is imperative that each party to a divorce know for certain what their soon-to-be-ex-spouse’s income actually is. Failing an accurate determination of a soon-to-be-ex-spouse’s income, a party can request that an Illinois divorce court “impute” income to the soon-to-be-ex-spouse. The process by which an Illinois divorce court determines what a divorce litigant should make is called “imputing income.” There are two reasons to impute income: 1) You don’t know what the person is really making or 2) The person is making less than they could BY CHOICE. Imputing Income In An Illinois Divorce In Order To Determine What A Person Currently Makes Some people’s finances are a mess. Or they only get paid in cash…and then they spend that cash before it gets counted. “If present income is uncertain, a court may impute income to the payor.” In re Marriage of Gosney, 394 Ill. App. 3d 1073, 1077 (Ill. App. […]

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Orders of protection are powerful tools and once an order of protection is in place, its violation has serious penalties. Orders of protection can be violated even if the protected party consents to the so-called violation. Orders of protection keep people apart who used to live together. Orders of protection are ony available to “any person abused by a family or household member” 750 ILCS 60/201(a)(i) Orders of protection can also be issued for people who used to date. “Family or household member” include “persons who have or have had a dating or engagement relationship.” 750 ILCS 60/103(6)  People that used to share some kind of familial or dating relationship often will reach out their former abusers either out of nostalgic desire for reconciliation or as a trap to force the defendant to violate the order of protection. Is it a valid defense to say that an order of protection was not violated because the protected party was, in reality, the person who contacted the defendant? Can a defendant to an order of protection argue that the protected party was not threatened or abused by the defendant but, rather, invited the defendant to contact them…which may, technically, violate the order of protection but not the spirit of the order of protection: to protect? The violation of an order of protection depends on what remedies were granted in the order of protection. When an order of protection is issued different remedies are established that prohibit future contact between the parties. Virtually all orders of protection include a “[p]rohibition of abuse, neglect, or exploitation. Prohibit respondent’s harassment, interference with personal liberty, intimidation of a dependent, physical abuse, or willful deprivation, neglect or exploitation…stalking of the petitioner” 750 ILCS 60/214(a)(1) Answering a petitioner’s phone call or coming over to a petitioner’s house after being invited is hardly “abuse, neglect, exploitation…harassment, etc.” However, most orders of protection additionally prohibit ANY contact. The Illinois Domestic Violence Act allows a court to “[o]rder respondent to stay away from petitioner or any other person protected by the order of protection, or prohibit respondent from entering or remaining present at petitioner’s school, place of employment, or other specified places at times when petitioner is present, or both, if reasonable, given the balance of hardships. Hardships need not be balanced for the court to enter a stay away order or prohibit entry if respondent has no right to enter the premises.” […]

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Business owners have the worst divorces. A business owner’s income will be challenged because, after, the business owner pays themselves. The value of the business must be determined by outside experts without an actual sale (business owners always want to keep their business). Furthermore, a business owner’s spouse knows the strengths and weaknesses of the business and can actively sabotage their spouse’s business during the tumult of a divorce. When a spouse does actions or inactions that actively harm a business, the business owning spouse can file additional claims beyond the Petition For Dissolution of Marriage, effectively suing the spouse for the damages that spouse is causing to the business. This strategy can be very effective in a family law court where additional claims are almost never pled. Tortious Interference With A Prospective Economic Advantage The tort of “tortious interference with a prospective economic advantage” is a tool a business owner can use to recover damages from another person, even a spouse, who ruins some kind of economic opportunity. “It is generally recognized by the Illinois courts, however, that to prevail on a claim for tortious interference with a prospective economic advantage, a plaintiff must prove: (1) his reasonable expectation of entering into a valid business relationship; (2) the defendant’s knowledge of the plaintiff’s expectancy; (3) purposeful interference by the defendant that prevents the plaintiff’s legitimate expectancy from ripening into a valid business relationship; and (4) damages to the plaintiff resulting from such interference.” Fellhauer v. City of Geneva, 142 Ill. 2d 495, 511 (Ill. 1991) This tort is far easier to prove against a business owner’s spouse because any negative action by that spouse cannot be inferred to have some reasonable purpose (a defense a competitor could enjoy). “In Illinois, a claim for tortious interference with a prospective economic expectancy must [have]…intentional and malicious interference with the expectancy without just cause.” Disher v. Fulgoni, 161 Ill. App. 3d 1, 24 (Ill. App. Ct. 1987) An “allegation [must have] ‘intentional and malicious interference’ necessary to establish a prima facie case of tortious interference with prospective economic advantage.” Small v. Sussman, 306 Ill. App. 3d 639, 648-49 (Ill. App. Ct. 1999) “[I]f [a defendant’s] conduct is directed solely to the satisfaction of his spite or ill will and not at all to the advancement of his competitive interests over the person harmed, his interference is held to be improper.” TOTAL STAFFING SOLUTIONS v. Staffing, […]

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When one spouse controls all the money in a marriage, the other spouse is left completely vulnerable. It costs money to live! If your spouse has all the money, how can you live? Does withholding money amount to financial abuse in an Illinois divorce? Financial Abuse Is Abuse In Illinois In Illinois, abuse is resolved by 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 An order of protection can only be granted if there is abuse. Abuse has a very broad definition in Illinois. “’Abuse’ means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation” 750 ILCS 60/103(1) Withholding money could be considered harassment under the Illinois Domestic Violence Act. “’Harassment’ means knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances” Cancelling a spouse’s credit cards is not necessary to accomplish a reasonable goal under the circumstances (you’re in the middle of a divorce) More likely, withholding money from a spouse is probably ‘willful deprivation’ under the category of abuse “’Willful deprivation’ means willfully denying a person who because of age, health or disability requires medication, medical care, shelter, accessible shelter or services, food, therapeutic device, or other physical assistance, and thereby exposing that person to the risk of physical, mental or emotional harm”750 ILCS 60/103(15) Everyone, at every stage of age, health or disability requires “medication, medical care, shelter, accessible shelter or services, and food.” All of those items require money to purchase. While an order of protection is commonly associated with the power to keep one party away from another, an order of protection can also compel behavior from one party: such as ordering financial support or remuneration. An order of protection can “[o]rder 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.” 750 ILCS 60/214(b)(12) Parents or friends often make emergency loans to cover expenses while a spouse is withholding money. […]

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In Illinois, maintenance (formerly known as alimony) is always one of three different numbers: Zero. Because maintenance is not warranted in this divorce case. 33% of the payor’s net income minus 25% of the payee’s net income (with payor’s income and maintenance not to exceed 40% of the total of the two incomes) An amount appropriate based on the circumstances of the two divorcing parties. To determine which of these three formulas will be applied in your Illinois divorce case and what number will, eventually, be arrived at as your maintenance payment, the below analysis must occur. Will There Even Be Maintenance In Your Illinois Divorce? For every divorce case in Illinois, the court must first find that ANY maintenance award is appropriate. “In a proceeding for dissolution of marriage, legal separation, declaration of invalidity of marriage, or dissolution of a civil union, a proceeding for maintenance following a legal separation…the court may grant a maintenance award for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct, and the maintenance may be paid from the income or property of the other spouse. The court shall first make a finding as to whether a maintenance award is appropriate, after consideration of all relevant factors, including: (1) the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance as well as all financial obligations imposed on the parties as a result of the dissolution of marriage;(2) the needs of each party;(3) the realistic present and future earning capacity of each party;(4) any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage;(5) any impairment of the realistic present or future earning capacity of the party against whom maintenance is sought;(6) the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment;(6.1) the effect of any parental responsibility arrangements and its effect on a party’s ability to seek or maintain employment;(7) the standard of living established during the marriage;(8) the duration of the marriage;(9) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and the needs of each of the parties;(10) all […]

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After an Illinois divorce is settled or a trial order is issued, the divorce is not over. Both parties must still comply with the terms of the Judgment for Dissolution of Marriage and the incorporated Marital Settlement Agreement and Allocation of Parenting Time and Parental Responsibilities. Illinois law provides multiple methods for enforcing those terms. All of these contracted agreements become incorporated into the judgment once the Judgment for Dissolution of Marriage is entered. At that time, the agreements are enforceable as judgments. “Under section 502(e) of the Illinois Marriage and Dissolution of Marriage Act (Act), settlement agreements are enforceable as terms of a judgment and by incorporation into a judgment they become part of the trial court’s order. By such incorporation, the agreement’s subservient nature as a contract gives way to the dominant character of the adjudication. Thus, the terms of the marital settlement agreement are enforceable as terms of the judgment.” In re Marriage of Sloane, 255 Ill. App. 3d 653, 656 (Ill. App. Ct. 1993) “Terms of the agreement set forth in the judgment are enforceable by all remedies available for enforcement of a judgment, including contempt, and are enforceable as contract terms.” 750 ILCS 5/504(e) Orders get enforced in the same court the order was issued. “Any judgment entered within this State may be enforced…in the judicial circuit wherein such judgment was entered” 750 ILCS 5/511(a) If someone has moved, the order will be enforced in the new, appropriate county or state. “If neither party continues to reside in the county wherein such judgment was entered or last modified, the court on the motion of either party or on its own motion may transfer a post-judgment proceeding…to another county or judicial circuit, as appropriate, where either party resides.”750 ILCS 5/511(a) But, filing a motion for enforcement is kind of silly because they are already not following the order. What are you going to do? Get another order which they will, in turn, also not follow? You need something extra. You need the power of contempt. Enforcing a Judgment Via Contempt To violate a court order is to insult the decency and power of the court which issued that order. Therefore, that court may hold the violator in contempt for said violation. Contempt can either be criminal or civil. Violation of a judgment for dissolution of marriage and its incorporated orders is invariably an issue of civil contempt. […]

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Warren Buffet once said, “If you don’t find a way to make money while you sleep, you will work until you die.” Many people have saved enough money, that subsequently makes enough money to maintain themselves…and then they get divorced. The money divided is often enough to live off as well (or at least pay for half of the divorced person’s expenses). Do income producing assets mean that no one has to pay maintenance (formerly known as alimony)? Or do income producing assets mean that there is now even more alimony to be paid from that income after an Illinois divorce? Is There So Much Assets Awarded That Neither Spouse Needs Maintenance? The assets awarded in an Illinois divorce absolutely affect whether an Illinois divorce court will award maintenance. Before even considering the amount of maintenance, an Illinois divorce court must consider whether the assets awarded to either spouse make a maintenance award appropriate. “In a proceeding for dissolution of marriage…the court may grant a maintenance award for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct, and the maintenance may be paid from the income or property of the other spouse… The court shall first make a finding as to whether a maintenance award is appropriate, after consideration of all relevant factors, including:(1) the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance as well as all financial obligations imposed on the parties as a result of the dissolution of marriage.” 750 ILCS 5/504(a) If the assets awarded are so incredibly lucrative that the spouse’s needs will certainly be met, no maintenance need be awarded. If the assets awarded do not produce such clear and tremendous independent income, the court will award maintenance, either pursuant to guidelines (a mathematical formula) or deviating from guidelines (based on fairness). How Is Maintenance Calculated When Income From Assets Are Not Considered? “[I]f the court finds that a maintenance award is appropriate, the court shall order guideline maintenance” 750 ILCS 5/503(b-1) A “[m]aintenance award in accordance with guidelines.…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) This maintenance guideline amount has a cap based on the maintenance receiver’s income relative to the maintenance payor’s income. “The amount calculated as […]

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“If you don’t find a way to make money while you sleep, you will work until you die.” – Warren Buffett.  Lots of people have followed Warren Buffet’s advice by saving and investing so their money can earn them an independent income one day. These investments generate interest, dividends and other kids of income. However, even the wisest investor will have a personal life and, sometimes, that means divorce.  How is interest, dividend and other income treated in an Illinois divorce? Asset Division In An Illinois Divorce Assets that generate income are divisible in a divorce if the assets are marital property. After the designation of an asset being “marital property” the Illinois divorce court “shall divide the marital property” 750 ILCS 5/503(d) Non-marital property is property that was acquired before the marriage or received as a gift or inheritance. Non-marital property stays with the spouse whose name the non-marital property is in. “[T]he court shall assign each spouse’s non-marital property to that spouse.” 750 ILCS 5/503(d) Dividing the assets is not the end of the story, however. If those assets generate some kind of income via rents, interest, dividends, etc., then that income must be factored into any maintenance or child support calculations. Income From Assets In An Illinois Divorce In determining maintenance (formerly known as alimony) the courts will consider “the income and property of each party” 750 ILCS 5/501(a)(1). Child support amount is similarly arrived at based on income in that child support in that the Illinois statute states its goal is “to allocate the amount of child support to be paid by each parent based upon a parent’s net income” But what is “income” for the purposes of a divorce? Income is “[t]he money or other form of payment that one receives, usu[ally] periodically, from employment, business, investments, royalties, gifts and the like.” Black’s Law Dictionary 778 (8th ed. 2004) The Illinois child support statute agrees that income can come from a broad range of sources. “”[G]ross income” means the total of all income from all sources” 750 ILCS 5/505(a)(2)(A) The Illinois maintenance statute reads similarly and directs us back to the child support statute should there be any questions. “”gross income” means all income from all sources, within the scope of that phrase in [the child support section] of this Act” For the purposes of both child support and maintenance gross income is a factor […]

https://rdklegal.com/interest-and-dividend-income-in-an-illinois-divorce/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

When a divorce begins, there is a fundamental lack of trust between the two spouses. This lack of trust is especially strong when it comes to finances. There will always be suspicion that one spouse will try to hide or remove assets from the marriage. Because of this, parties will try to ask the court to freeze all of the marriage’s assets during the divorce until those assets can be appropriately allocated in the divorce process. “In a marriage dissolution proceeding, it is proper to prevent one spouse from secreting or disposing of marital assets” Erlich v. Lopin-Erlich, 553 NE 2d 21 – Ill: Appellate Court, 1st Dist. 1990 How do you freeze assets in an Illinois divorce? The Automatic Stay In many states, there is an “automatic stay” in the statutes that prevents parties to a divorce from doing anything to diminish or conceal any assets. In addition or in the alternative, other states also will allow judges to issue standing orders that are automatically issued at the beginning of a divorce case. Those standing orders can personally order the parties to a divorce to essentially freeze their assets until further order of court. There used to be a provision in the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/501.1), providing for the automatic restraint against transferring, encumbering or disposing of any property without bond the moment a divorce was filed until further order of court. This provision of the act automatically freezing assets in an Illinois divorce has since been removed after the provision was found to be unconstitutional by the Illinois Supreme Court. Messenger v. Edgar, 623 N.E.2d 310 (Ill. 1993) The court found that the provision was overly broad because there are almost always non-marital assets that would also be frozen under this Illinois statute. Furthermore, any legal restriction by the state or a court must require “due process” under the U.S. constitution and the Illinois constitution. Due process is the fair application of the law. The court held that automatically freezing someone’s assets without notice, hearing or even a signed affidavit by someone familiar with the facts is a direct violation of due process. So, there is no automatic freezing of assets in an Illinois divorce.  Temporary Restraining Order or Preliminary Injunction Assets can eventually be frozen in an Illinois divorce, just not automatically.  A motion must be filed in order to freeze […]

https://rdklegal.com/freezing-assets-during-an-illinois-divorce/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com