Articles Posted in Divorce

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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In my last post, I set forth the legal framework in which Illinois courts examine whether property is marital or non-marital.  In this post, I apply that analysis to a hypothetical fact pattern.

Let’s assume Greg and Sandy are married. During the marriage, they purchase a house and title it jointly. During the marriage, Greg gets himself into legal trouble, and fears that he is going to be sued for several hundred thousand dollars. He hires a lawyer to prepare a quitclaim deed, and transfers his interest in the house to Sandy. The lawyer records the deed, making Sandy’s ownership of the property public record. Fortunately, the lawsuit Greg feared never materializes. They continue living in the house together until Greg files for divorce 10 years later. In the divorce case, Sandy claims that the house is her non-marital property.

Legally, the fact that the house was purchased during the marriage sufficiently raises the presumption that it is marital property under 750 ILCS 5/503(a). The fact that the parties initially titled it jointly reinforces that presumption. If Sandra wishes to assert that the residence is non-marital, she bears the burden of presenting evidence at trial to show that it was acquired as non-marital property under 750 ILCS 5/503.

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A common misconception many people have at the start of the divorce process is that only jointly-titled assets are considered marital property, and that everything else is not. For a number of reasons, often times the asset in question is the marital residence. Perhaps the husband has bad credit, and can’t get approved for a mortgage loan, so the house was purchased solely in the wife’s name. Perhaps, the wife is self-employed, and titled the house in her husband’s name to protect it from potential creditors. Litigants are usually either shocked or relieved to learn that, under Illinois law, the determination of whether house is marital or non-marital depends upon when and how it was acquired, and not necessarily on how it is titled.

Before a court may dispose of property in a divorce case, it must classify the property as either marital or non-marital. After classification, each spouse’s non-marital property is given to that spouse, and the marital property is divided in just proportions. Marriage of Hagshenas, 234 Ill.App.3d 178, 186, 600 N.E.2d 437 (2d Dist. 1992).   Pursuant to 750 ILCS 5/503(a), “marital property” means all property acquired by either spouse subsequent to the marriage, except for property which falls within certain enumerated categories. In order for property acquired during the marriage to be deemed non-marital, the party claiming it to be non-marital must present evidence that it was acquired in one of the following ways:

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Editor’s Note:  In December, 2014, Illinois Governor Quinn signed into law a revised version of the Illinois Eavesdropping Statute.  The constitutionality of the new law has not yet been challenged.


On March 20, 2014, the Illinois Supreme Court struck down the Illinois Eavesdropping Statute, 720 ILCS 5/14-1, et seq. , as unconstitutional. See People v. Clark, 2014 IL 115776; People v. Melongo, 2014 IL 114852. Generally speaking, that law made it a crime to make an audio recording of another person without their consent, subject to certain exceptions. Worse, the statute rendered any evidence obtained in violation of its provisions inadmissible in any civil or criminal trial. 720 ILCS 5/14-5.

From an evidentiary perspective, the probative value of an audio recording of a person’s own words, spoken aloud in his or her own voice, cannot be underestimated. As such, in the context of family, the old Eavesdropping statute deprived litigants and their divorce attorneys of potentially valuable evidence. Thus, the Illinois Supreme Court’s decision is a decidedly positive development in the law.

To illustrate, suppose that George and Mary are about to file for divorce. They are home on an otherwise quiet evening. George is sitting on the couch, watching TV. Mary is getting ready for bed. Earlier in the day, however, they had argued extensively. George accused Mary’s family of unnecessarily meddling in their household affairs. Mary blamed George. She felt that if George would simply act more responsibly, her family wouldn’t have to get involved. Though they had stopped arguing hours ago, they were at an uneasy state of peace.

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