Articles Posted in Divorce

Divorces in Illinois have been governed by the Illinois Marriage and Dissolution of Marriage Act, originally enacted in 1979.  Since then, changes in family dynamics, including recent developments in Illinois law related to same-sex marriage, parentage, adoption, and in areas of embryo preservation and rights, rendered the law outdated and in need of an update.  For years, Illinois legislators, judges, and prominent practitioners in the field have pushed for a revised version of the Act, but only recently has this been accomplished.

 

The revised law, which will become effective on January 1, 2016, has been updated in several significant ways that impact how divorces and related issues will be addressed.  The law will apply to new and pending cases and will change the way that divorcing parties navigate the process of divorce.

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The following is a brief summary of some of the important changes to the Act:

 

Grounds:

 

Presently, a person seeking a divorce must allege “grounds” for the divorce.  Most commonly, people cite “irreconcilable differences” as the reason for a divorce.  To prove irreconcilable differences have arisen to cause a marriage to fail, the party filing for divorce must prove that the parties have lived separate and apart for a continuous period of in excess of two years, or agree with the other party to waive the separation period if they have lived apart for six months.  The must also prove that the marriage is over and not salvageable.  The other fault-based reasons include: impotency, adultery, desertion, habitual drunkenness, excessive use of addictive drugs, poisoning, extreme  and repeated physical or mental cruelty, one party being convicted of a felony or other infamous crime, or infecting the other spouse with a sexually transmitted disease.

 

The revised law eliminates all of the fault-based grounds for getting divorced, leaving the only grounds of irreconcilable differences.  Further, instead of having to prove a statutory period of separation, the new law eliminates the separation period as well. These changes shift the focus away from having the parties blame one another for the divorce in order to allow them to proceed as amicably and quickly as possible.

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Divorce matters can be complicated, regardless of the employment status of the parties.  But when one or both of the spouses is a member of the military, several issues come into play.  This article will address health benefits, retirement pay available to spouses of military service members, and child support.

 

Real American Military Family

 

  1.  Military Benefits Available to Former Spouses:

In most divorces, upon the entry of a judgment for dissolution of marriage (a final divorce decree), a spouse is no longer eligible to be covered under the other spouse’s medical benefits.  However, for military divorces, there are special rules.

 

“20/20/15 Spouses”: A military member’s former spouse qualifies for medical benefits for a full year, beginning from the date of the divorce so long as all of these are true:

  • The parties were married for 20 years or more (from the date of marriage to the date of entry of a divorce decree or annulment),
  • The service member performed 20 years or more of military service which entitles him/her to retirement pay; and
  • There is a 15 year or more overlap of the marriage and military service.

 

If the 20/20/15 former military spouse has employer-sponsored medical insurance, he or she is not eligible for the one-year transitional care.  If that employer-provided plan is optional, the former spouse can opt out of that plan and choose to participate in the one-year military benefit pan.

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Section 503 of the Illinois Marriage and Dissolution of Marriage Act requires that a court divide the marital property in just proportions considering all relevant factors, including, among other things, the dissipation by each party of the marital property.  Legally, a spouse dissipates (or wastes) marital assets when he or she:

  • uses marital property
  • for his or her own benefit
  • for a purpose unrelated to the marriage
  • while the marriage is undergoing an irreconcilable breakdown.

In order to prove dissipation, all four of the above elements must be shown.  Dissipation can manifest itself in several ways, such as concealing assets, transferring them, selling them, spending money, or incurring debt without the other spouse’s knowledge or consent.  For example, the Illinois Appellate Court has found dissipation in the following circumstances:

  1. In the case of Marriage of Thomas, the husband dissipated marital property by causing the devaluation of a marital business through his inattention to the quality of service that the company was supplying its clients, his failure to solicit additional clients, and by stealing clients for his new business, even though he did not gain any personal benefit.
  2. In Marriage of Gurda, the husband’s committed dissipation by taking marital funds and investing them in a company that became insolvent, without informing his wife. He sold marital property, settled a lawsuit and a workers’ compensation claim, and took out home equity loan secured by marital residence.  The funds were subsequently lost as a result of the bad investment.
  3. In Marriage of Aslaksen, the husband dissipated marital assets when he failed to make court-ordered mortgage payments, and as a result the marital home went into foreclosure.
  4. In Marriage of Landfield, the husband removed $200,000 from common cash fund account.
  5. In certain circumstances, one spouse’s use of marital funds for expenses following irretrievable breakdown of marriage may be shown to be so selfish and excessive as to constitute a dissipation of marital funds, which may be considered in dividing marital assets following dissolution.  See Marriage of Blunda.
  6. Transfer of property, even non-marital property, for inadequate consideration may constitute dissipation, and the court may enjoin attempted dissipation of assets. Wood v. Wood.
  7. In Marriage of Charles, the husband dissipated marital assets by spending in excess of $116,000 on an extramarital relationship, liquidating investments, and failing to satisfy tax debt, thereby incurring over $26,000 interest and penalties.

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In a divorce, the Court has the obligation to equitably divide the marital assets and debts, and determine whether maintenance would be appropriate.  While non-marital property is not subject to being divided in a divorce, it may have a profound impact on the appropriate division of the marital assets and debts.  It may also be considered in determining how much maintenance should be paid.

 

Therefore, the first question is what is “marital property?”

 

Section 503(a) of the Illinois Marriage and Dissolution of Marriage Act defines marital property as all property acquired by either spouse subsequent to the marriage, except the following, which is known as non-marital property:

  • property acquired by gift or inheritance;
  • property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift or inheritance;
  • property acquired after a judgment of legal separation;
  • property exclude by valid agreement of the parties (e.g., pursuant to a prenuptial agreement);
  • any judgment or property obtained by judgment awarded to a spouse from the other spouse;
  • property acquired before the marriage;
  • the increase in value of property acquired by a method listed in paragraphs (1) through (6), irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effect of a spouse, or otherwise, subject to the right of reimbursement provided in subsection (c) of this Section; and
  • income from property acquired by a method listed in paragraphs (1) through (7) of this subsection if the income is not attributable to the personal effort of a spouse.

 

The law is clear: both inheritance and property acquired before marriage are non-marital.  This means that the party who owns the non-marital property will be keep it in the divorce, and the other party will have no claim to it.  In cases where one spouse has a sizeable amount of non-marital property this may seem unfair, particularly in the case of a long-term marriage.  Also, unlike property, a spouse’s non-marital income may be considered when determining the maintenance award to the other spouse.

 

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There is a certain irrationality inherent in contentious divorce and child custody cases. Many people going through such an experience might label their spouse as mentally unstable. If such mental instability is an actual psychological condition, as opposed to mere name calling, it can be particularly relevant when custody of minor children is in dispute.

When it comes to determining a person’s ability to parent minor children, a parent’s mental health may be under high scrutiny. Illinois Supreme Court Rules provide a mechanism through which a party to a divorce or child custody proceeding can call into question the opposing party’s mental health and request that he or she submit to an examination by a mental health professional.

mental health exam

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Imagine this scenario: In 2004, your elderly father, Howard, decided to marry for a fourth time. He married a then-22 year old woman named Anna. In 2014, after ten years of marriage, Howard decides he has had enough of Anna’s hard-partying ways and files for divorce. He also thinks she may have married him just for his money. Despite being a billionaire, Howard decides to represent himself in the divorce. While the case is pending, Howard suffers from a debilitating brain aneurism that has affected his ability to speak, communicate, to get out of bed, and needless to say, to act as his own attorney or make decisions on his behalf. You are named as his power of attorney and decide to seek guardianship over him as a “disabled adult” to make decisions on his behalf. As his guardian, are you then able to continue with the divorce proceedings on his behalf? Can you obtain an attorney to represent you as the guardian taking the place of Howard? The answer is, at least ever since 2012, a clear “yes” and here’s why.

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Before 2012, Illinois case law was clear that a third-party individual could not file for divorce on behalf of someone else in any circumstance, nor could that party continue divorce litigation for that person. In the 1986 case of Marriage of Drews, the Illinois Supreme Court held that a guardian did not have standing to file a divorce proceeding on behalf of the ward.  In Drews, the husband was injured so severely that he was permanently mentally and physically disabled. After the accident, his mother was appointed as guardian of his estate and person. In that capacity, the mother filed for divorce on behalf of the husband. The Court held that absent specific statutory authorization, a guardian cannot institute an action for the dissolution of the ward’s marriage on behalf of the ward. It supported this conclusion by stating that the Probate Act, which did allow a guardian to represent the ward in legal proceedings, limited this ability to matters related only to the estate, rather than the ward’s person.

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In Illinois, maintenance can be terminated if the party receiving maintenance “cohabits with another person on a resident, continuing conjugal basis.”  What does that mean? The answer is not as straightforward as it might seem.

To illustrate the analysis, an example is helpful. Let’s assume Danny married Sandy in 2008. During their marriage, Danny has earned a decent income. Sandy is unemployed. Danny believes that Sandy has been unfaithful, and he wants a divorce. Sandy also wants a divorce, and asks Danny if he would help her financially so she could get her own apartment while the divorce is pending. Danny refuses to give her a dime. At first glance, Sandy would seem to be a strong candidate to receive maintenance.

Subsequently, Sandy moves out of the marital residence and into the home of her long-time friend, Johnny. Danny believes that Sandy may be having an affair with Johnny because he saw a picture of Johnny kissing her on the cheek on Facebook. He has always suspected that she had feelings for him. Sandy denies that she is in a romantic relationship with Johnny. Rather, she claims they are simply friends and roommates.

After about a month of living with Johnny, it is clear that Sandy spends a few nights each week with Johnny. She sleeps in her own, separate room. She does not pay anything toward Johnny’s household bills, and she does not have any joint accounts with him. Sandy has, however, gone on a weekend trip to Galena with Johnny, and has spent Thanksgiving with him. Under this set of facts, would Sandy be entitled to maintenance from Danny? Or would her right to receive maintenance be terminated due to her cohabitation with Johnny. Continue Reading ›

Brad is a financial manager with Big Business USA. He earns an annual salary, and doesn’t have an employment contract. However, his employer does give him the opportunity to receive an annual bonus, based on the company’s performance in general, and Brad’s performance in particular. Whether or not Big Business USA actually pays Brad a bonus is a matter within the company’s sole discretion. If they do decide to pay him a bonus, his award for this calendar year will be paid next year, in February.

 

Brad is married to Angie. Except for one year in which he received no bonus at all, Brad has earned a large bonus every year that he’s been with Big Business USA. Eventually, the couple starts having marital trouble, and Angie files for divorce. They can’t agree on anything, and the case is set for trial in September. Brad has been working hard and the company has been making enormous profits, and both Brad and Angie expect Brad to get a big bonus next February. Because the divorce will be finalized in September, Angie argues that 9/12 of the bonus would have been earned during the marriage, and therefore considered “marital property.” Her argument is based upon the Illinois Marriage and Dissolution of Marriage Act, which creates a legal presumption that all property acquired by either spouse during the marriage is marital property, unless it was acquired in a way that makes it non-marital. 750 ILCS 5/503(a). A few examples of non-marital property would be property which was acquired by gift or inheritance, or property subject to a prenuptial agreement. Marital property is divided equitably among the parties in a divorce. Non-marital property is not.

 

Brad argues that when the bonus check arrives in February, he and Angie will already be divorced. Therefore, he claims, it is not property “acquired during the marriage,” and should not be considered marital.

 

Unfortunately, the statute says nothing about a situation such as the one that arose in Brad and Angie’s. Specifically, there is no mention as to how a court should classify a non-vested, discretionary bonus issued after the divorce but attributed to one party’s employment during the marriage. In 2013, the Illinois First District Appellate Court decided the issue in the case of In re Marriage of Wendt. In that case, the court ruled that because the husband’s receipt of a bonus was uncertain and not guaranteed by any employment contract, it was only an “expectancy interest” and not actual “property” acquired during the marriage. Therefore, the court decided that the bonus was not marital property, and the wife was not entitled to any of it.

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Senate Bill 3231 was approved this month and will take effect January 1, 2015. It amends the current divorce law in Illinois on spousal support, the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/504. This means changes are coming regarding maintenance, which is also known as spousal support (also referred to as alimony by the Internal Revenue Service).

Unlike child support, in a divorce proceeding, the judge has discretion to determine whether or not to order maintenance. In order to decide whether maintenance is appropriate, the court will weigh several factors, such as the duration of the marriage, the standard of living established during the marriage, and the income and needs of each party. The court will also look at whether one spouse forwent higher education or career opportunities to stay home, and the amount of time it will take that spouse to achieve sufficient education or job training to become financially self-sufficient.

If the court decides to order maintenance, it can do so either in accordance with guidelines or not in accordance with guidelines. The court must use specific guidelines if the combined gross income of the parties is less than $250,000 and there is no multiple family situation. Interestingly, the definition of “multiple family situation” is nowhere to be found in the new statute. Presumably, it refers to a situation where a spouse has support obligations in more than one case.

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Surprising as it may be, divorced people are entitled to receive benefits based upon their ex-spouse’s earning history as well as their own. Moreover, the benefit is based on the ex-spouse’s entire earnings history, not just earnings accrued during the time the couple was married.
Spousal benefits were introduced in an era when most women did not work outside the home and did not earn their own Social Security benefits. Today, women frequently earn more than their husbands, and have higher Social Security benefits as a result. However, because the spousal benefit is largely a relic of a bygone era, it is only fitting that my hypothetical example reflect that era. Consider the marriage of a couple named Mark and Angela, who were married for 30 years, and then got divorced. Mark is now 67. During the marriage, he was the breadwinner, and based upon his earnings, he has accrued Social Security retirement benefits. Angela is 66 and never worked outside the home. Her social security earnings history lists nothing but a series of zero’s over the years. Neither party has remarried.
If they had remained married, when Mark applies for Social Security benefits, the maximum amount of spousal benefits Angela could claim would be 50% of his monthly benefit – his “Primary Insurance Amount” (PIA) – once she reaches full retirement age. Now that they are divorced, she remains entitled to that same amount, provided that certain criteria are met. According to the Social Security Administration, those criteria are as follows:

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