DuPage County Divorce Lawyer Blog

Commingled Property & Contribution / Reimbursement Claims Under Illinois Law

Published on: March 6, 2023 | Kollias, P.C.

Perhaps no issue is the source of greater confusion among divorce lawyers than the issue of commingled property and contribution claims. That confusion is compounded by the fact that in practice, judges have differing opinions on when a contribution claim is appropriate and when it isn’t. Thus, outcomes vary greatly from one judge to another.

It may be helpful to start by defining what a contribution claim is not. It is not an assertion that an asset is the non-marital property of one spouse or the other. Rather, a contribution claim begins with the undisputed common understanding that marital property and non-marital property have been commingled together, and we need to figure out who is entitled to what.

Marital and non-marital property are defined by statute under 750 ILCS 5/503(a). A contribution claim is essentially a claim for reimbursement. The statute sets forth the rules as follows:

Beyond Bitcoin: Finding, Valuing, and Dividing Cryptocurrency in a Divorce

Published on: April 1, 2022 | Kollias, P.C.

In just a few short years, cryptocurrency has moved from the fringes of the technology and finance worlds into the mainstream. According to a Pew Research Poll conducted in November 2021:

86% of Americans had heard “at least a little” about cryptocurrencies,
24% claimed to know “a lot” about them, and
16% had personally invested or traded in them

Among those who had invested or traded cryptocurrencies, the largest cohort was men between the ages of 18 and 29, of whom 31% had personal experience. All of those statistics were significantly larger than what Pew found in its study that was done back in 2015.

If you or your spouse own crypto assets (or if you suspect your spouse does, but you aren’t sure), what should you do in the event of a divorce? How do you go about finding the assets, valuing them, and dividing them?

The first thing you should do is hire an attorney who has personal, first-hand experience investing or trading in cryptocurrency. As the Pew Research Poll cited above shows, while a large majority of people have heard a little about Bitcoin, Ethereum, Solana, NFT’s (non-fungible tokens) and others, only a small minority of those people have actually dealt with them. The concepts, terminology, and mechanisms for buying, selling, and trading are completely foreign to most Americans, and that includes most divorce lawyers. At Kollias, P.C., we have not only handled numerous cases involving crypto assets, but our firm has also accepted payment in Bitcoin and other cryptocurrencies since 2019.

QILDRO’s Under the Illinois Municipal Retirement Fund – Settlement Agreements Might Not Mean What They Say

Published on: January 21, 2022 | Kollias, P.C.

Throughout Illinois, thousands of municipal employees have pension benefits through the Illinois Municipal Retirement Fund (abbreviated as “IMRF”). To the extent those pension benefits are earned while the employee is married, those pension benefits can be divided in a divorce case by way of a special court order known as a Qualified Illinois Domestic Relations Order (abbreviated as “QILDRO”). A QILDRO is separate from a judgment for dissolution of marriage or a marital settlement agreement, which specifies the rights of each of the parties. Rather, it is an order directing the IMRF to split the pension benefits in accordance with very specific instructions.

The Illinois Pension Code contains very specific instructions as to what information a QILDRO must contain in order for the IMRF to comply with the court’s order to divide pension benefits. In fact, the Illinois Pension Code even includes a sample fill-in-the-blanks form containing pre-printed language and boxes to check. The IMRF uses the form as specified in the pension code.

Because a QILDRO is a fill-in-the-blanks form, it does not allow many options for the parties to customize the way they divide pension benefits in a divorce case. Thus, it is possible for there to be a conflict between the terms of a judgment for dissolution of marriage and the terms of the QILDRO that the IMRF must process. In the event of such a conflict, which terms would control?

Is There A Procedural Deadline for Mental Health Examinations?

Published on: July 20, 2021 | Kollias, P.C.

This article should be read in conjunction with our May 2015 article on Mental Health Examinations.

There any number of child related issues that may arise in a divorce or parentage matter. Frequently, the most intractable issue are those which pertain to the mental or physical fitness on the part of a party to the case. Illinois Supreme Court Rule 215 permits opposing parties and even the trial court may seek to discover relevant facts about the condition of an adverse party by requiring them to participate in an evaluation with an impartial medical professional. The evaluator may conclude and report to the court whether the party is either mentally and physically fit to function around their children without adversely affecting the children’s mental, moral, physical, or emotion well-being, or even their best interests.

If you are subject to a Rule 215 evaluation you may ask yourself, are there any limitations to evaluations if your case has concluded? Can a court abuse its discretion by ordering an evaluation? The answer, maybe a surprising, “yes.”

Trial by Combat under Illinois Law?

Published on: February 26, 2021 | Kollias, P.C.

“I will sue you!” is a common phrase meant to inform someone that you will seek legal recourse in order to settle your dispute in court. In the alternative, “I will meet you ‘on the field of battle where I will rend [your] souls from [your] corporal bodies’” is not a common phrase, nor is it a means by which people typically settle their disputes. However, one Kansas man was mad enough to invoke an age-old form of dispute resolution against his former wife and her attorney in a post-divorce case, which was, of course, a motion for trial by combat.

On January 2, 2020, David Ostrom, 40, of Paola, Kansas, filed a motion for trial by combat with the Iowa District Court in Shelby County alleging, in part, that his ex-wife, Bridgette Ostrom, 38, “destroyed (him) legally.” Such legal destruction being resolved by the possibility of death would seem hardly reasonable to the common layman. However, “to this day, trial by combat has never been explicitly banned or restricted as a right in these United States,” Mr. Ostrom would go on to say that trial by combat was used “as recently as 1818 in British Court.” Not surprisingly, shortly after filing his motion, Mr. Ostrom was quickly faced Ms. Ostrom’s Motion to Suspend Visitation and Motion for Psychological Evaluation.

How Credit for Non-Marital Military Service Can Become a Marital Asset – Understanding Martin v. Martin

Published on: February 23, 2021 | Kollias, P.C.

When going through a divorce, a marital asset is defined as any asset that a party accrued during the marriage. For example, a husband’s retirement account that accrued during the marriage would be considered marital, while any portion of his retirement account that he accrued prior to the marriage would be considered non-marital. Therefore, when going through a divorce, the wife would only be entitled to the marital portion of the husband’s retirement account. The wife would not be entitled to anything that the husband accrued prior to the marriage.

Of course, with any legal issue, there are certain exceptions. Cue the Martin v. Martin case that came down on June 20, 2019 in Florida. This case specifically dealt with military service and how pre-marital military service credits could become a marital asset in a pension. What most people don’t know is that a member of the military is required to accrue 20 years of military service to receive military retired pay, which is the proper term for what people often refer to as a “military pension.” If a servicemember has less than 20 years of service, they are unlikely to receive retired pay. However, those years of service can be applied to certain defined benefit pension plans to enhance the value of the monthly benefit at retirement age.

Emergency Jurisdiction in Illinois for Child Custody Cases – The Basic Concepts

Published on: February 19, 2021 | Kollias, P.C.

In general, the purpose of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) is to resolve custody disputes by directing the court with “continuing and exclusive jurisdiction” the jurisdiction to modify and enforce custody disputes that may arise between two different states. While each state has its own child custody statutes, the UCCJEA governs which state’s child custody laws will control in the event of a conflict involving a custody or enforcement proceeding where more than one state’s laws might apply. In 2004, Illinois adopted the UCCJEA, along with 48 other states. Massachusetts is the only state that has not adopted the it.

Probably most importantly, the UCCJEA indicates that the child’s “home state” should resolve all custody conflicts. The Act defines the child’s “home state” as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period” (emphasis added).

What About What the Child Wants?

Published on: October 13, 2020 | Kollias, P.C.

In a divorce case involving children or in parentage case, it is usually pretty easy to figure out what each of the parents wants. What often isn’t clear is what the child wants, and how much weight the court should give to a child’s expressed wishes.

The Illinois Marriage and Dissolution of Marriage Act (IMDMA), which governs child-related issues arising in divorce and parentage cases, sets out a series of factors a court should consider in making determinations related to the allocation of decision-making responsibilities (i.e., “custody”) and parenting time (i.e., “visitation”), as well as other child-related issues. This list is commonly referred to as the “best interests of the child” factors.

Are Your Child’s Counseling Sessions Really Confidential in Illinois?

Published on: October 8, 2020 | Kollias, P.C.

In Illinois, the Mental Health and Developmental Disabilities Confidentiality Act (MHDDCA), protects communications made between a client and a therapist. Generally, when an individual begins therapy, the therapist’s first obligation is to explain that anything the client says to the therapist will remain confidential. However, this may not always be the case for children whose parents are simultaneously involved in a custody battle, and where a Guardian ad Litem (GAL) has been appointed to investigate and recommend to the court what is in the best interest of the minor child.

In 2017, the Illinois legislature added section 607.6 to the Illinois Marriage and Dissolution of Marriage Act (IMDMA). Given how recently section 607.6 was added, there is not much case law interpreting its provisions. Under this section of the statute, a court may order individual counseling for a child, family counseling for the parties and the child, or parental education for one or more of the parties. Perhaps the more controversial portion of 607.6 can be found in subsection (d). Section 607.6(d) provides, “all counseling sessions shall be confidential. The communications in counseling shall not be used in any manner in litigation nor relied upon by any expert appointed by the court or retained by any party.”

Substitute Parenting Time When Servicemembers Are Deployed

Published on: March 30, 2020 | Kollias, P.C.

If you are currently an active duty military servicemember with orders to deploy, you may be wondering what happens to your parenting time with your kids while you are deployed. In other words, will you be forced to forfeit your parenting time with the minor children by virtue of your deployment? Will the children automatically need to stay with the non-deploying parent the entire time you are gone or can someone else exercise your parenting time in your place? Worry not, because these questions have been answered by the Illinois legislature.

For many servicemembers, the thought of “substitute” parenting time never crosses their mind. A common assumption is that if they are deploying, their children will naturally need to stay with the other non-deploying parent full-time until they return. However, for some families, this is not always the most functional scenario. For example, for children with parents who live in two different states, and with parents who do not get along, seeing both sides of the family can get very complicated when the non-deploying parent is unwilling to schedule time for the children to see the deployed parent’s family. Another example of where this may become complicated, is where the non-deploying parent does not have the capability of having parenting time with the children full-time due to other obligations such as work.