Articles Posted in Divorce

“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.

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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.

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Generally speaking, retirement benefits that are earned during the marriage are considered marital property under the Illinois Marriage and Dissolution of Marriage Act. However, determining the amount of spousal retirement benefits that are marital property is often times a central issue to the division of the marital estate upon divorce. In particular, retirement benefits such as a defined benefit plan or a pension can be more complicated to value at the time of divorce, especially where the employee spouse is not yet eligible for retirement.

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A defined benefit plan is a type of retirement plan that accrues benefits usually pursuant to some formula. This formula often will take into account several variables such as salary, length of service, and a multiplier. Because of these variables, the exact amount of the benefit that the employee will receive cannot actually be determined until they retire and the variables become fixed. Sometimes, after a certain number of years of employment, the pension plan may be able to produce an estimate of what the employee will receive upon retirement. However, the accuracy of the benefit amount depends on how close the employee is to actually retiring. Generally, under a defined benefit plan, the benefits are not considered to be “mature” because they depend upon the employee spouse reaching a certain age and they cannot be immediately paid to the other spouse (or “alternate payee” under the plan) at the time of divorce or entry of the Qualified Domestic Relations Order (“QDRO”). So, what do courts do when an employee is not yet eligible for retirement, but a portion (or all) of the pension or defined contribution plan is marital and subject to division upon divorce?

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The dictionary definition of “dissipation” is waste by misuse, to spend or use wastefully or extravagantly, to squander, to deplete.  The definition contained in the Illinois Marriage and Dissolution of Marriage Act refers to a spouse’s wasting of marital assets during while a marriage is undergoing an irretrievable breakdown.  What does that mean?

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In the case of Marriage of O’Neill, the court stated, “dissipation arises when property is improperly used for the sole benefit of one spouse, for a purpose unrelated to the marriage, at a time when the marriage is undergoing an irreconcilable breakdown.”   If a spouse spends marital money frivolously on items or individuals not related to the marriage while the marriage is breaking down, the other spouse may make a claim for dissipation in a divorce. In many cases, this arises when one spouse spends marital money on an extramarital affair, extravagant travel, and/or expensive hobbies, none of which benefit the marriage or family. Often a spouse does not learn of his or her partner’s dissipation until the discovery or information-finding step in the divorce.

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Many couples continue to reside together in the marital residence during divorce proceedings, even when the thought of having to continue to live with their spouse is terribly unpleasant.  This may be especially true when there are children involved.

 

But what happens if the living situation becomes especially sour or openly hostile?  Specifically, what happens when the physical or mental health of one of the spouses, or even one of the children, is at risk?  Section 501 of the Illinois Marriage and Dissolution of Marriage Act provides a remedy for the situation during the pendency of a divorce.

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Divorce litigation affects children, especially if they are living in a contentious atmosphere.  In an effort to minimize the impact of the legal process on children, counties in Illinois have implemented programs and procedures to keep children out of the courtroom, and facilitate resolution of parenting issues in domestic relations cases.  A handful of these programs are summarized here.

 

Mediation

 

Counties in Illinois are required to offer mediation programs for divorcing parents.  If parents are unable to reach an agreement regarding parenting time and the allocation of parental responsibilities, and so long as there are no extenuating circumstances (such as domestic violence), the court will send parents to mediation to try to resolve these issues outside the courtroom.  Judges will often remind parties in a divorce that parents know their family situations and needs best.  As parents, they should take advantage of the opportunity to reach a resolution that is in the best interests of the family, rather than delegating that decision a third party outsider.

 

The mediator does not represent either party and does not give legal advice.  Rather, the mediator’s job is to facilitate conversation between the parties, and hopefully aid them in resolving the matters related to their children.  The mediator will the issue a report stating whether the parties reached a full resolution, partial agreement, or were unable to reach an agreement.


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Section 504 of the Illinois Marriage and Dissolution of Marriage Act addresses maintenance.  The Internal Revenue Service calls it “alimony” on tax forms, and it’s sometimes called spousal support.

 

Under the law, upon the entry of a judgment for dissolution of marriage (a divorce decree), one spouse may be entitled to maintenance, either for a specific duration of time or permanently.  Before awarding maintenance to one spouse, the court must first determine whether an award of maintenance would be appropriate.  Just because the parties have been married a long time or have disparate incomes,that does not necessarily mean one spouse is entitled to maintenance.  Before the court may make a decision about how much maintenance is appropriate and for how long, the law requires the court to first decide whether maintenance is appropriate, after considering the following factors:

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In Illinois, during a divorce, either party can ask the court to order the other party to pay some or all of his or her attorney fees while the case is pending.  Section 501(c-1) of the Illinois Marriage and Dissolution of Marriage Act provides in pre-judgment (pre-decree) divorce cases, the court can assess attorney fees in favor of the petitioning party and against the other party.  The purpose of these interim attorney fee awards is to “level the playing field” and allow an economically disadvantaged spouse to participate adequately in the litigation.  See, Marriage of Rosenbaum-Golden.  This may be necessary where one spouse uses his or her greater control of assets or income as a litigation tool, making it difficult for the disadvantaged spouse.

Pockets Inside Out

If the court decides that one party cannot pay his or her attorney fees but the other party can, it can order that the party able to contribute pay some attorney fees to the other party.  However, if the court determines that both parties do not have sufficient financial ability or access to funds with which to pay, the court will allocate available funds for each party’s attorneys, including any retainers or interim payments previously paid.

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When going through a divorce, one thing parties are tasked with is dividing the marital estate.  This involves dividing marital assets, and allocating the responsibility of marital debts as well.  Debt that is incurred during the marriage is presumed marital.

Student Loan Debt

But what if the debt is for student loans incurred by only one party during the marriage?  At first blush, it may not seem fair to require the spouse working during the marriage to be responsible for the student’s loans, or even be responsible for a portion of them.  At the same time, the student may not have income, or may have pursued his or her degree relying on the working spouse’s representation that he or she would help pay the loans.

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Imagine the following scenario:  Kim and her boyfriend Kanye decide they want to get married.  Kim and Kanye have acquired a lot of money, bling, and swag throughout their years of work in music and promotions.  Kim, being the more cautious one, decides that before she and Kanye get married, they should sign a premarital agreement (better known by some as a prenuptial agreement or “prenup”) to protect herself in the event that fame wreaks havoc on the fledgling marriage.

Money in mout

Kim’s attorney drafts a premarital agreement that provides, among other things, that Kim’s earnings from the businesses which she started before her marriage, including her reality show, clothing line, and promotional appearances, will remain her sole and separate “non-marital” income.   Kim’s attorney gives the agreement to Kanye, who briefly glances at it while laying down a track, and signs it, without having his attorney review it.

 

Three months after the wedding, Kim decides the whole “marriage thing” is not right for her and files for divorce, in Illinois of all places.  During their short marriage, she has raked in a grand total of $3,000,000 in earnings from her various non-marital businesses.  In court, Kanye argues that the premarital agreement should be invalid.  He also argues that, even if it is found to be valid, that Kim’s $3,000,000 in earnings are marital in nature and that he should get half.  What should the result be for poor Kanye?

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One thing that occasionally complicates a divorce is when a spouse has an ownership interest in a non-marital business.  Countless hours of hard work have gone into the business, there are stocks and ownership interests involved, or perhaps one spouse has control over the business and the other has none.  There are several important situations to consider when you are going through a divorce and business ownership is involved.  Some of these important implications are addressed below.

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Contribution and Reimbursement

All property that is acquired by either spouse during a marriage is presumed to be marital property.  This includes income generated during the marriage, even if the income is generated from working at a non-marital business.  For example, if a husband is working at his non-marital business and paying himself a salary of $100,000 per year, his salary is marital property.

 

When a spouse contributes personal effort during a marriage to non-marital property, such as a non-marital business, the efforts may also be deemed a contribution from the marital estate to the non-marital property.  The value of these efforts and contributions, if in the form of retained earnings or assets, can be subject to reimbursement to the marital estate, particularly if the contributing spouse has not been reasonably compensated.  So, if your spouse is paying him or herself a $50,000 salary, but the reasonable salary for the work he or she does is $100,000, the marital estate has a reimbursement claim for the difference.

 

Finally, it is important to note that only the appreciation of non-marital property resulting from significant personal efforts of the spouse are subject to reimbursement to the marital estate.  This means, for instance, that if one spouse has $100,000 in an investment account before the marriage, and at the time of divorce the account is worth $200,000 due solely to favorable market conditions, the marital estate is not entitled to $100,000 reimbursement even though the appreciation occurred during the marriage.

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