What Is A Constructive Trust In An Illinois Divorce?

Illinois family law has a lot of buzzwords that divorce lawyers understand (or pretend to) that regular people can’t seem to wrap their head around. “Constructive trusts” is one of those buzzwords.

If you search for “constructive trust” in the Illinois statutes, you’ll come back with exactly one instance of the term…which is just a referral to the court’s power to create a constructive trust.

This is because “constructive trust” is a tool that case law (also known as common law) provides for when an agreement fails or an order is impossible to enforce.

“[I]f common law principles of express contract govern express agreements between [couples], common law principles of implied contract, equitable relief and constructive trust must govern the parties’ relations in the absence of such an agreement.” Hewitt v. Hewitt, 394 NE 2d 1204 – Ill: Supreme Court 1979

A constructive trust is not an actual trust. A constructive trust is a legally enforceable concept that courts are free to employ should they encounter a gross injustice or a legal impossibility.

“A constructive trust is one raised by operation of law as distinguished from a trust created by express agreement between the settlor and the trustee.” Suttles v. Vogel, 126 Ill.2d 186, 193, 127 Ill.Dec. 819, 533 N.E.2d 901 (1988) (quoting Perry v. Wyeth, 25 Ill.2d 250, 253, 184 N.E.2d 861 (1962)).

Specifically, a constructive trust is either a written, by agreement court order or a constructive trust will be ordered by the court after a hearing. A constructive trust will impose that one party will act as a trustee for the other party in order to manage and eventually distribute some asset to that other party.

Stock Options And Constructive Trusts In An Illinois Divorce

In 90% of Illinois divorce cases constructive trusts are going to refer to a spouse with unvested stock options which are marital property but are not distributable until they finally vest.

For a stock option to “vest” means that the stock option is finally owned and executable by the previously owner of the previously “unvested” shares.

So, were the stock options even “owned” before they vested (which is often after the divorce)? The stock options have definitely been earned during the marriage. The Illinois statute removes all doubt that an unvested stock option has a marital portion.

“For purposes of distribution of property under this Section, all stock options and restricted stock or similar form of benefit granted to either spouse after the marriage and before a judgment of dissolution of marriage or legal separation or declaration of invalidity of marriage, whether vested or non-vested or whether their value is ascertainable, are presumed to be marital property.” 750 ILCS 5/503(b)(3)

Until the date of vesting, the spouse who is earning the stock options can be said to be the trustee for his spouse or former spouse’s share of those stock options. It is the stock option-owner spouse’s duty to their spouse to faithfully execute the stock option and deliver that share of the marital portion of the stock option’s value to his or her former spouse pursuant to the terms of the Marital Settlement Agreement.

So, this duty to maintain and execute a stock option which is in the employee’s name alone, is referred to as a constructive trust because the marital portion of the stock option CANNOT be transferred to the ex-spouse until the stock has vested.

So, why is it called a constructive trust and not just “following the terms of our agreement?”

As a constructive trust, there is a duty of care and additional enforcement options beyond the mere agreement that can be exercised by either party.

Constructive Trusts As An Enforcement Of The Terms Of An Illinois Divorce

Other civil courts beyond family law courts use constructive trusts all the time in order to prevent “unjust enrichment.

In these cases, a constructive trust is an equitable doctrine in which the holder of a legal title is held to be a trustee for the benefit of another who is entitled to that benefit.

“[A] court has the inherent power to enforce its orders, and the circuit court retains jurisdiction to enforce domestic relations orders…[A] court also retains its traditional equitable powers irrespective of empowering statutes.” In re Marriage of Shulga, 2019 IL App (1st) 182028

The doctrine of constructive trust is normally applied to resolve a situation where the holder of the legal title has been unjustly enriched at the expense of another who was supposed to get some or all of that property.

A constructive trust is a concept courts use to right a wrong. A constructive trust is not a written, planned trust.

Because a constructive trust is neither planned nor written, the boundaries of a constructive trust are less clear than those for a resulting or express trust.

No intent to create a trust need be established. Constructive trusts are exempt from the Statute of Frauds, so no written document is required, even if real estate is the subject of the constructive trust. The doctrine of constructive trusts is applied when the holder of legal title has been unjustly enriched at the expense of another.

Constructive trusts are completely reactive. Constructive trusts are created to avoid unjust enrichment and unconscionable results. Because of this, it is difficult to outline exactly what circumstances make a constructive trust an option and what, exactly, a constructive trust will cover.

Illinois case law broadly outlines what is required for a court to create a constructive trust and the duties of trusteeship that follow upon a constructive trust’s creation.

“A constructive trust is created when a court declares the party in possession of wrongfully acquired property as the constructive trustee of that property, because it would be inequitable for that party to retain possession of the property…A constructive trust is generally imposed in two situations: first, where actual or constructive fraud is considered as equitable grounds for raising the trust and, second, where there is a fiduciary duty and a subsequent breach of that duty. A constructive trust may also arise when duress, coercion or mistake is present. Some form of wrongdoing is a prerequisite to the imposition of a constructive trust.” Suttles v. Vogel, 126 Ill. 2d 186, 193, 533 N.E.2d 901, 904-05 (1988).

It sounds like a constructive trust is a pure punishment. For example, a divorce litigant who didn’t disclose all of his assets before the divorce was finalized could find those hidden assets subject to a constructive trust as a remedy for their deceit. The litigant would then have the duty to determine their spouse’s marital portion and distribute that marital portion to their spouse.

Fraud and deceit aren’t always required to impose a constructive trust. If the above divorce litigant discovered a gold mine in his backyard the day after the divorce was finalized a constructive trust could still be imposed to resolve this unjust enrichment.

“Although some form of wrongdoing is generally required for the imposition of a constructive trust, wrongdoing is not always a necessary element. For example, a constructive trust may be imposed in the case of mistake, although no wrongdoing is involved.” Smithberg v. Ill. Mun. Retirement Fund, 192 Ill. 2d 291, 299 (2000)

Both of these scenarios would not have been resolved by a Petition For Contempt because the hidden assets were unknown to the agreement. As the assets were not addressed, there was no clause in the agreement regarding the assets that could have been violated.

Once a constructive trust has been imposed by an Illinois court, the new trustee has a duty to the beneficiary of that constructive trust in regards to the property covered by the constructive trust. Breaching that trust allows Illinois courts to impose a variety of enforcements/punishments.

“(a) A violation by a trustee of a duty the trustee owes to a beneficiary is a breach of trust.
(b) To remedy a breach of trust that has occurred or may occur, the court may:
(1) compel the trustee to perform the trustee’s duties;
(2) enjoin the trustee from committing a breach of trust;
(3) compel the trustee to redress a breach of trust by paying money, restoring property, or other means;
(4) order a trustee to account;
(5) appoint a special fiduciary to take possession of the trust property and administer the trust;
(6) suspend the trustee;
(7) remove the trustee as provided in Section 706;
(8) reduce or deny compensation to the trustee; or
(9) subject to Section 1012, void an act of the trustee, impose a lien or a constructive trust on trust property, or trace trust property wrongfully disposed of and recover the property or its proceeds.
(c) Nothing in this Section limits the equitable powers of the court to order other appropriate relief.” 760 ILCS 3/1001

The range of penalties for being a bad constructive trust trustee go from another constructive trust of other non-marital property to ANYTHING. This includes incarceration. This is the real power of a constructive trust. Once a constructive trust is imposed, the court is limitless in its ability to enforce its own orders.

In reality, 99% of constructive trust orders for divorce cases find that “[t]he sole duty of the constructive trustee is to transfer title and possession of the wrongfully acquired property to the beneficiary.” Blumenthal v. Brewer, 69 NE 3d 834 – Ill: Supreme Court 2016

Constructive Trusts And Third Parties In An Illinois Divorce

A constructive trust is one of the many tools a court has to enforce a Marital Settlement Agreement (or what should have been included in the Marital Settlement Agreement).

It is very easy to enforce disposition of property by requiring the party to follow the court’s orders. What happens when the property is no longer in the party’s possession. For example, what happens if the party gave heirloom jewelry to his new girlfriend when he was required to turn over the jewelry to his wife. Can the violating party simply say “Sorry, it’s too late. I no longer have the jewelry?”

The party can say that…but his girlfriend is going to be really unhappy when the girlfriend in included in the divorce case as an interpleader and the girlfriend’s new jewelry becomes subject to a constructive trust. Now the girlfriend will be the ex-wife’s trustee.

“[A] constructive trust requires any other party who receives the…proceeds, but who has an inferior equitable right to them, to hold the proceeds solely for the vested beneficiary.” Perkins v. Stuemke, 585 NE 2d 1125 – Ill: Appellate Court, 4th Dist. 1992

This blatant fraudulent conveyance is not very common in divorce cases. What is extremely common and with similar effect is one of the parties changing the beneficiary on their life insurance. By the time it is discovered, the party is dead and no longer subject to the jurisdiction of the court. The new beneficiary can take the money and run…unless someone asks for a constructive trust.

“When marital settlement agreements require an insured to maintain life insurance for the benefit of a particular beneficiary, that beneficiary has an enforceable, equitable right, to the proceeds of the insurance policies against any other named beneficiary” Schwass By and Through Postillion v. Schwass, 126 Ill.App.3d 512, 467 N.E.2d 957, 81 Ill.Dec. 835 (1st Dist., 1984).

If someone is talking to you about constructive trusts and you don’t understand them, you need to speak to someone who will help you understand this extremely vague yet powerful equitable doctrine Illinois divorce courts can employ. Contact my Chicago, Illinois family law firm to learn more about what a constructive trust is from an experienced Chicago divorce attorney.

source https://rdklegal.com/what-is-a-constructive-trust-in-an-illinois-divorce/

Sole Custody in an Illinois Divorce or Parentage Action

There are lots of kinds of custody in Illinois.  Sole custody implies that the child or children spend all of their time with one parent and the other parent has no say in how the child or children are raised.  Maybe this is a good idea for your children, maybe it’s not.  Either way, sole custody is an extremely loaded term that needs to be properly understood as it relates to Illinois custody law.  So, what is sole custody in an Illinois divorce or parentage action?

There Really Isn’t Any Child Custody In Illinois Anymore

In 2016, the Illinois legislature struck the word “custody” from the Illinois statutes.  The logic behind getting rid of the word “custody” is that having one singular concept for who gets the kid turns custody…into a battle.  Realistically, custody can be broken down into a bunch of individual parts which can be allocated to each parent instead of applying custody as an all-or-nothing concept.

In lieu of the term “custody,” Illinois now uses the twin concepts of 1) Parenting Time and 2) Parenting Responsibilities.

“Parenting Time” is the children’s schedule.  So, sole custody would be the children spending all of their time with one parent.

“Parenting Responsibilities” is who makes the decisions for the children. Parents who can communicate effectively about their children usually share parenting decision-making.  Parents who cannot communicate with each other about their children must be assigned aspects of the children’s lives that they will EACH be responsible for. The Illinois statute outlines four areas of responsibility 1) education, 2) health, 3) religion and 4) extracurricular activities.  750 ILCS 5/602.5(a)

If the parties cannot agree to sole custody (no one ever agrees to sole custody, they either fight for time and decisions or they simply disappear) then the parents must attend mandatory mediation.

If mandatory mediation does not result in an agreement between the two parties, then a third attorney will be appointed to represents the best interest of the child, investigate the two parents and report back to the court their findings.

In the end, all decisions in an Illinois court regarding children focus on the best interests of the children. “[C]ustody proceedings under the Marriage and Dissolution of Marriage Act are guided by the overriding lodestar of the best interests of the child or children involved.” In re A.W.J., 197 Ill. 2d 492, 497-98 (2001)

How To Get Sole Custody Regarding Decision Making For The Child?

It is extremely rare for two non-communicative parents to effectively divide responsibilities.  In reality, one parent becomes responsible for everything.

A failure to communicate effectively means that one parent will inevitably have sole custody regarding decision making. An Illinois family law judge is not required to give a parent at least some decision-making power over the children. “Nothing in this Act requires that each parent be allocated decision-making responsibilities.” 750 ILCS 5/602.5(a)

If you can’t communicate with the other parent, how do you ensure that you’ll be the parent who gets to make the decisions for the child?

“The court shall allocate decision-making responsibilities according to the child’s best interests.” 750 ILCS 5/602.5(a)

In determining the child’s best interests for purposes of allocating significant decision-making responsibilities, the court shall consider all relevant factors, including, without limitation, the following:” 750 ILCS 5/602.5(a)

Some of the factors listed by the statute to decide decision making are totally irrelevant like “wishes of the parents” or “the child’s daily schedule.”  Other factors are just too obvious and therefore control such as “whether one of the parents is a sex offender”. So, let’s just focus on the factors that matter.

“[T]he ability of the parents to cooperate to make decisions, or the level of conflict between the parties that may affect their ability to share decision-making” 750 ILCS 5/602.5(c)(4)

If you can’t communicate, the court must allocate the decision making.  If one parent won’t communicate, the implication is that the more communicative parent should be allocated the decision making.

Invariably, the non-communicative parent does not encourage the children to communicate with the other parent. This also weighs against the non-communicative parent’s ability to make decisions for the children as the court will consider “the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child” 750 ILCS 5/602.5(11)

Proving who is the communicative parent is easy: bring in text messages and email. The content of the texts and emails will be as plain as day as to who is willing to cooperate and who is not.

Additionally, there are apps like “Our Family Wizard” which keep a permanent record of the conversations with the other parent.  The judge, the family law attorneys and the guardian ad litem will all be able to directly access the Our Family Wizard text transcripts. 

If the communication from the other parent is sufficiently hostile or manipulative, you can use the belligerent communication as evidence of some kind of mental unwellness.  The court can consider “he mental and physical health of all individuals involved” 750 ILCS 5/602.5(c)(3)

If you can point to the other parent’s failure to communicate as a mental health issue, such as narcissism or being a sociopath, you’re probably going to get sole custody for decision making.

All of these issues should be brought to the attention of the Guardian Ad Litem or Child Representative who will then investigate the matter and report back to the judge…who usually follows their recommendation.

Even if you have sole decision making for your children, it’s really not that absolute.  Outside of planned decisions about education, health, religion and extracurricular activities, the other parent still can make day-to-day decisions for the child when that child is in his or her possession. 

“A parent shall have sole responsibility for making routine decisions with respect to the child and for emergency decisions affecting the child’s health and safety during that parent’s parenting time.” 750 ILCS 5/602.5(d)

In reality, if you want true sole custody you want to have sole parenting time with the child or children.

How To Get Sole Custody Regarding Parenting Time For The Child?

“A reasonable visitation schedule is one that will preserve and foster the child’s relationship with the noncustodial parent.” In re Marriage of Eckert, 119 Ill. 2d 316, 327 (1988)

It is a herculean task to keep a parent from having ANY parenting time with their child. The Illinois statute presumes that each parent is “fit” and entitled to parenting time.

“It is presumed both parents are fit and the court shall not place any restrictions on parenting time.” 750 ILCS 5/602.7(b)

If you want sole parenting time, the other parent must have some serious character flaws that are giving you such serious anxiety that you don’t even want your children exposed to the other parent. 

Even if the other parent is an adulterer, drug addict, drunk, spendthrift, gambler, gun nut or a smoker, it will not reduce their parenting time so long as they don’t do those things in front of the children.

“In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.” 750 ILCS 5/602.7(c)

So, we can’t really get sole custody from the very beginning. The other parent is going to ask for parenting time immediately, before the divorce or parenting matter is finalized.

“A court may order a temporary allocation of parental responsibilities in the child’s best interests before the entry of a final allocation judgment.” 750 ILCS 5/603.5(a)

But, you can typically keep that initial parenting time limited and supervised if the guardian ad litem or child representatives agrees with that the parenting time being subjected to those kind of restrictions.

Once the temporary visitation is established, a parent who doesn’t deserve parenting time will inevitably completely and horribly screw it up. 

When they do screw up, you must file a motion to bring that screw up to the court’s attention.

After a hearing, if the court finds by a preponderance of the evidence that a parent engaged in any conduct that seriously endangered the child’s mental, moral, or physical health or that significantly impaired the child’s emotional development, the court shall enter orders as necessary to protect the child.” 750 ILCS 5/603.10(a)

If the incident was really bad, you can even bring this motion before the court on an emergency basis in order to get an emergency custody order.

After the court hears about the incident, the court may order “a reduction, elimination, or other adjustment of the parent’s decision-making responsibilities or parenting time, or both decision-making responsibilities and parenting time” 750 ILCS 5/603.10(a)(1)

This is really the only way you can get court ordered sole custody of a child in Illinois. You need the Illinois family law judge to make a finding of an unfit parent in order to truly deny that parent parenting time with their children.

How Sole Custody Can Be Preserved In An Illinois Divorce Or Parentage Action

Sole custody doesn’t last forever, however. The statute then gives the violating parent the power to remove the restrictions.

“The court may modify an order restricting parental responsibilities if, after a hearing, the court finds by a preponderance of the evidence that a modification is in the child’s best interests based on (i) a change of circumstances that occurred after the entry of an order restricting parental responsibilities” 750 ILCS 5/603.10(b)

In reality, the violating parent will either change their ways (or appear to) or the violating parent will simply disappear. 

Even if the violating parent does change their ways to the satisfaction of the family law judge to allow for continued visitation, the violating parent will still have been absent for some time.

It is decidedly not in the children’s best interests for an absent parent to just reappear like nothing happened.  The reappearance of an absent parent almost always require reintegration therapy (also known as reunification therapy).  An Illinois family law court will enforce this therapy.

“The court may order individual counseling for the child, family counseling for one or more of the parties and the child, or parental education for one or more of the parties, if it finds…the child’s physical health is endangered or that the child’s emotional development is impaired”750 ILCS 5/607.6

The truth is that most people lose touch with their children due to addictions or personality disorders. 

If the other parent has struggled and successfully dealt with an addiction, that parent will be no stranger to therapy and will welcome the reintegrative therapy.

However, if the other parent has a personality disorder like narcissism or a “cluster B” personality disorder, that parent will avoid any kind of therapy at all cost.  So, that parent will probably never reenter the child’s life. 

How To Get Sole Custody Post-Divorce

It’s especially difficult to keep a parent out of a child’s life if a final allocation of parenting time and parenting responsibilities has already been entered.  In that final allocation of parenting time and parenting responsibilities there is probably a clause in that order that says “both parents are fit”. That is an official “finding of the court” and a subsequent court can not undo that declaration of fitness. Marriage of LaTour, In re, 608 N.E.2d 1339, 241 Ill.App.3d 500, 181 Ill.Dec. 865 (Ill. App. 1993)

To get the court to make an official finding of unfit-ness is going to require some really extreme behavior on the part of the unfit parent.

Sole Custody And Child Support In Illinois

Child support in Illinois is determined by the number of overnights each parent has with the children. If you have all of the overnights, though, you don’t get more child support. Child support is only reduced if the other parent has more than 146 overnights a year (40% of all overnights). That is a far cry from sole custody.

Many parents seeking sole custody are often willing to trade away child support for sole custody. The right to child support in Illinois, in theory, belongs to the child not the parent. So, you cannot set child support to zero unless you can give the judge a good reason…and you never can.

But, you can “reserve” the issue of child support. This means no child support order is entered but you can return to court at anytime in the future and ask for child support AND back child support from the date of the reservation.

Sole custody is a really big deal in Illinois.  Sole custody depends almost entirely on the faults of the parent who you are trying to take parenting time away from.  If the other parent is going to insist on parenting time, those faults have to be extreme and they have to be proven in a court of law.  To talk about sole custody and your Illinois divorce or parentage case, contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce lawyer.

source https://rdklegal.com/sole-custody-in-an-illinois-divorce-or-parentage-action/

Exclusive Possession Of The Marital Home In An Illinois Divorce

Living with someone is hard. It’s even harder to live with someone while you’re in the process of divorcing them. Sooner or later, someone has to move out of the house. How do you get exclusive possession of the marital home in an Illinois divorce?

Temporary Exclusive Possession Of A Marital Home During An Illinois Divorce

During the pendency of an Illinois divorce either party can ask an Illinois divorce court to evict the other party from the home. There must be an allegation that the “physical or mental well-being of either spouse or his or her children is jeopardized” in order for an Illinois divorce court to evict a spouse in such a summary fashion.

“Where there is on file a verified complaint or verified petition seeking temporary eviction from the marital residence, the court may, during the pendency of the proceeding, only in cases where the physical or mental well-being of either spouse or his or her children is jeopardized by occupancy of the marital residence by both spouses, and only upon due notice and full hearing, unless waived by the court on good cause shown, enter orders granting the exclusive possession of the marital residence to either spouse.” 750 ILCS 5/501(c-2)

It does not matter whose mental or physical well-being is threatened by continued cohabitation. What matters is who can manage to live outside the home. When evicting someone on a temporary basis, “the court shall balance hardships to the parties.” 750 ILCS 5/501(c-2)

That means whoever would have the hardest time moving out…will likely not be the one to move out. Whomever is caring for the children the majority of the time is almost assured to get exclusive possession of the marital home.

It does not matter if the marital home is owned or leased exclusively by one party to the divorce.

“Property is characterized as marital or nonmarital only for the purposes of division on dissolution of marriage or legal separation. No attempt is made to regulate the respective interests of the spouses in property during the existence of the marriage. Operation of the term, “marital property” is not triggered until the time of dissolution. Thus, [a] trial court’s order of exclusive possession to [a spouse] pending outcome of the cause is irrelevant to the later disposition of the home as marital or nonmarital property.” In re Marriage of Hofstetter, 430 NE 2d 79 – Ill: Appellate Court, 1st Dist. 1981

An eviction under this statute is an injunction. An injunction forbids a party to a lawsuit from doing something. Like all injunctions, it does not last forever.

Temporary exclusive possession of a marital home “may be revoked or modified before final judgment” 750 ILCS 5/501(d)(2)

“Generally, with respect to preliminary injunctions, a court has inherent power during the pendency of the case before it to issue, modify, or vacate such injunctions. [Citations.] The circuit court possesses power to dissolve a preliminary injunction absent change of facts or law from the time of issuance to the time of dissolution, provided a sufficient basis exists to support dissolution. Whether or not to dissolve the injunction rests within the discretion of the court.” Patrick Media Group Inc. v. City of Chicago, 252 Ill. App. 3d 942, 946 (1993)

The most difficult part of the near inevitability of one party being granted exclusive possession of the marital home is waiting for the “full hearing” which could take months. In the meantime, your capacity to live together up until the hearing may be an argument for denying a motion for exclusive possession of the marital home. For this reason, motions for exclusive possession are often proceeded by Petitions For Orders Of Protection.

Exclusive Possession Of The Marital Home After An Order Of Protection In Illinois

An Illinois divorce court can award exclusive possession of a home when granting of an order of protection.

An Illinois divorce court may “[p]rohibit respondent from entering or remaining in any residence, household, or premises of the petitioner, including one owned or leased by respondent, if petitioner has a right to occupancy thereof.” 750 ILCS 60/214(b)(2)

Spouses have an equal right to be in the marital home regardless of who is on the title to the house.

“A party has a right to occupancy of a residence or household if it is solely or jointly owned or leased by that party [or] that party’s spouse” 750 ILCS 60/214(b)(2)(A)

After an order of protection is granted and when considering exclusive possession of the marital home, a court must balance the hardships with special care for the needs of any children.

“[T]he court shall balance (i) the hardships to respondent and any minor child or dependent adult in respondent’s care resulting from entry of this remedy with (ii) the hardships to petitioner and any minor child or dependent adult in petitioner’s care resulting from continued exposure to the risk of abuse (should petitioner remain at the residence or household) or from loss of possession of the residence or household (should petitioner leave to avoid the risk of abuse). When determining the balance of hardships, the court shall also take into account the accessibility of the residence or household.” 750 ILCS 60/214(b)(2)(B)

But, the abuser is going to be presumed to be the one who must leave the marital home.

“The balance of hardships is presumed to favor possession by petitioner unless the presumption is rebutted by a preponderance of the evidence, showing that the hardships to respondent substantially outweigh the hardships to petitioner and any minor child or dependent adult in petitioner’s care.” 750 ILCS 60/214(b)(2)(B)

The person who gets evicted from the marital home still has the right to return to the marital home to pick up his or her personal property.

“If an order of protection grants petitioner exclusive possession of the residence…then the court may allow respondent access to the residence to remove items of clothing and personal adornment used exclusively by respondent, medications, and other items as the court directs.” 750 ILCS 60/214(b)(3)(A)

Temporary exclusive possession whether by motion or petition for order of protection shall not have an impact on any final allocation of the marital home.

“No such order shall in any manner affect any estate in homestead property of either party.” 750 ILCS 5/501(c-2)

“The grant of exclusive possession of the residence, household, or premises shall not affect title to real property” 750 ILCS 60/214(b)(2)

Final Exclusive Possession Of The Marital Home In An Illinois Divorce

An Illinois divorce is finalized by the entry of a Judgment for Dissolution of Marriage which orders the allocation of all marital and non-marital assets.

“[T]he court shall assign each spouse’s non-marital property to that spouse.” 750 ILCS 5/503(d)

Property is non-marital if it is “property acquired before the marriage” 750 ILCS 5/503(a)(6)

If someone owned the home before the marriage and the home remained in their name exclusively (including the mortgage) that home will remain with that person post-divorce.

An Illinois court will then “divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:

[T]he relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having the primary residence of the children” 750 ILCS 5/503(d)(5)

So, an Illinois divorce judge may be inclined to award one party the entire marital home, especially if the parties share children.

Illinois divorce courts are allowed to award an entire home to a single party without an equal split of the net assets.

“The [Marriage and Dissolution of Marriage] 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

“[E]quitable division depends on more than merely an analysis of dollars and cents.” In re Marriage of Abu-Hashim, 2014 IL App (1st) 122997, ¶ 22, 14 N.E.3d 524.

After the home is awarded to one party in a final judgment, that award may not be modified absent some unforeseen circumstances such as fraud.

“The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State.” 750 ILCS 5/510(b)

The first step to sanity after a divorce is moving out or getting your spouse to move out. Contact my Chicago, Illinois family law firm to learn more what your options are regarding your marital home at the beginning of your divorce and when your divorce is finalized in an Illinois court of law.

source https://rdklegal.com/exclusive-possession-of-the-marital-home-in-an-illinois-divorce/

Can Phone Records Be Used To Prove Adultery In An Illinois Divorce?

We are all walking around with little computers (smart phones) in our pockets that record everything the computer experiences. Most notably, smart phones record phone calls and texts. This information literally tells us who we are talking to and when.

An 11 AM call for 2 minutes once a week tells you a lot about a person’s relationship or lack thereof with the person on the other line.

Dozens of calls per week that sometimes last an hour and are often made in the middle of the night indicates that there is some kind of relationship between the owners of the two phones.

Text messages, go one step further and literally tell you what the parties said to each other.

Can this information from a divorcing person’s phone be used to prove adultery in an Illinois divorce court?

How To Get Information Off Of Your Spouse’s Phone?

You can just ask your spouse for their call history. They are not likely to agree to hand over their phone…especially if your suspicion of adultery is warranted.

But, if you do get your spouse’s phone you can download their call and text history.

The phone companies know how much private information is on a phone…and they don’t want to make it easy for 3rd parties to get access to that private information. An Iphone, for example, will only show you the last 100 calls.

Because of this, it is necessary to download a third-party app that will actually enable the download of call and text history.

So, you have to convince your spouse to open their phone, download an app, and then download their calls and text messages and send that information to you.

If you are going through a divorce…this is never going to happen.

Even under oath in a deposition, a party or their attorney can simply object and refuse to release those documents because the text messages weren’t included in the rider of the subpoena deuces tecum. If the text messages were included in the rider…expect the incriminating messages to be deleted by the date of the deposition.

The only way to accurately get all the information regarding calls and text messages is via a subpoena to the cellular carrier.

How To Subpoena Your Spouse’s Call Records And Text Messages In Illinois

Lawyers have the power to issue subpoenas which require the receiver to either produce the requested information or object to said production.

“[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)

The only party who might have information regarding phone calls and text messages would be the cell phone’s cellular carrier: AT & T, T-Mobile, Verizon, etc.

The contents of call are obviously not recorded so they cannot be subpoenaed. Text message contents are recorded but the contents are deleted from the carrier’s servers within days.

The only thing you can expect to receive back are the records of the calls having happened or the text messages having been made.

Even if the cell phone carrier kept the text messages, they still can not divulge them under federal law.

“[A] person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service.” 18 U.S.C. § 2702(a)(1)

The key word in that statute is “content.” Electronic communications services can provide records of call and text messages, when they were sent and who they were sent to. But, companies cannot send the content of those messages.

Furthermore, there dozens of ways in which two people can communicate surreptitiously: Facebook Messenger, WhatsApp, Snapchat, Instagram Direct, Twitter Direct Messages, WeChat, Skype, Zoom. The list is endless. Are you going to subpoena every messaging app in the world?

Perhaps the most ingenious way of communicating quietly was when General Petraeus opened a gmail account with his mistress. They just both logged in and wrote draft emails on the same account. Then they read eachother’s drafts. No message was ever sent so no message could ever be intercepted. They learned this trick from the Taliban.

My point is, cheaters can and will do anything to cover their tracks. They are cheaters! Technology and the law combined, largely allow them to conceal their activities. This begs the question…why bother trying to get evidence of adultery?

Evidence of Adultery In An Illinois Divorce

Illinois divorce courts do not need to know if there was adultery in the marriage. There is only one thing that needs to be proven in order to get a divorce in Illinois: that “[i]rreconcilable differences have caused the irretrievable breakdown of the marriage and the court determines that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family.” 750 ILCS 5/401(a)

An Illinois divorce court is not going to care why or how those “irreconcilable differences” arose. In 99% of cases, Illinois courts do NOT care about any bad behavior including cheating and adultery.

Illinois divorce judges “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503(d)(emphasis mine)

“[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, and the maintenance may be paid from the income or property of the other spouse.” 750 ILCS 5/504(a)(emphasis mine)

Illinois child support is a pure calculation “based upon the parents’ combined net income estimated to have been allocated for the support of the child if the parents and child were living in an intact household.” 750 ILCS 5/501(a)(1)(D)

Adultery between two adults will not affect either adult’s relationship with their child after an Illinois court hearing.

“In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.” 750 ILCS 5/602.7(c)

Any mention of adultery in an Illinois divorce court will be met with an “Objection. Relevance!” from the opposing counsel.

“To be relevant, evidence must establish a fact of consequence to the determination of the pending action; it must be both material and have probative value.” Demos v. Ferris-Shell Oil Co., 740 NE 2d 9 – Ill: Appellate Court, 1st Dist., 4th Div. 2000

Adultery is completely inconsequential in an Illinois divorce, therefore, any evidence thereof is irrelevant and will not be considered by an Illinois court.

There is only one exception to adultery’s irrelevance: if the adultery caused a dissipation of marital assets.

“Dissipation is defined as the use of marital property for one spouse’s sole benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.” In re Marriage of Tietz, 605 NE 2d 670 – Ill: Appellate Court, 4th Dist. 1992

Spending marital money on boyfriend or girlfriend is de facto use of “marital money…for a purpose unrelated to the marriage.”

That spending must be identified to be at issue.

“[T]he notice of intent to claim dissipation shall contain, at a minimum, a date or period of time during which the marriage began undergoing an irretrievable breakdown, an identification of the property dissipated, and a date or period of time during which the dissipation occurred” 750 ILCS 5/503(d)(2) (emphasis mine)

How are records phone calls or text messages going to identify dissipated property? Without the content…which you can’t get pursuant to federal law, electronic communication cannot properly identify improper spending.

Leave phone records and text messages alone! They don’t tell you anything! What you need to do is subpoena bank records and the various payments apps. Anything involving money is 100% subject to subpoenas and is completely relevant.

You’ve been cheated on. You are hurt. You want closure. What you need is a divorce lawyer who can get you disclosure with dignity. Contact my Chicago, Illinois family law firm to learn more about what your divorce needs…and what it doesn’t.

source https://rdklegal.com/can-phone-records-be-used-to-prove-adultery-in-an-illinois-divorce/

Can You Change An Agreement After Mediation In An Illinois Divorce?

Obviously, when a court order is entered with the clerk’s seal and the judge’s signature, any agreement that is memorialized in the order becomes the law of the land.

What about the time between when the parties agree…and when the court enters the order? Can an Illinois divorce litigant change their mind in that window of time. Can you change an agreement after mediation and signature in an Illinois divorce?

When Is Mediation Done In An Illinois Divorce?

Mediation happens in an Illinois divorce whenever the parties agree to mediate.

Illinois courts really want you to come to an agreement in your divorce and they don’t care how you do it.

“To promote amicable settlement of disputes between parties to a marriage attendant upon the dissolution of their marriage, the parties may enter into an agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them, support, parental responsibility allocation of their children, and support of their children…after the children attain majority. The parties may also enter into an agreement allocating the sole or joint ownership of or responsibility for a companion animal.” 750 ILCS 5/502

Mediation is only mandatory if there is a disagreement between the parties regarding children.  

“The court shall order mediation to assist the parents in formulating or modifying a parenting plan or in implementing a parenting plan unless the court determines that impediments to mediation exist. Costs under this subsection shall be allocated between the parties pursuant to the applicable statute or Supreme Court Rule.” 750 ILCS 5/602.10(b)

Even when the parties are agreed they must include a mediation provision in their final parenting plan.

Every allocation of parenting time and parenting responsibilities must include “a mediation provision addressing any proposed reallocation of parenting time or regarding the terms of allocation of parental responsibilities, except that this provision is not required if one parent is allocated all significant decision-making responsibilities” 750 ILCS 5/602.10(f)(3)

A court cannot order mediation in the future beyond this clause.

“We have found no statutory or common law authority for a trial court to order mediation of prospective visitation disputes in the absence of a preliminary finding that the issues in question are proper for mediation. The trial court does have authority to order mediation in certain instances; however, a review of this authority shows that it does not contemplate the ordering of prospective mediation.” In re Marriage of Aleshire, 652 NE 2d 383 – Ill: Appellate Court, 3rd Dist. 1995

If one party begs the court for a chance to discuss getting back together, the court may force the parties to meet to discuss getting back together.

“If the court concludes that there is a prospect of reconciliation, the court, at the request of either party, or on its own motion, may order a conciliation conference.” 750 ILCS 5/404(a)

If either party has an attorney, any meeting for “reconciliation” or otherwise will not happen if there’s no attorney present.

“The court, upon good cause shown, may prohibit conciliation or other process that requires the parties to meet and confer without counsel.” 750 ILCS 5/404

Good luck rekindling that old flame while your ex’s attorney is watching.

When Does A Mediated Agreement Become Binding In An Illinois Divorce?

At mediation, hopefully a full agreement will be reached and someone will type it up and prepare the agreement for signature.

“Any agreement pursuant to this Section must be in writing, except for good cause shown with the approval of the court” 750 ILCS 5/502(a)

An agreement in regards to a divorce is a contract and will be interpreted as such.

“The provisions of a [marital] settlement agreement are to be interpreted by normal contract rules.” In re Marriage of Kloster, 469 NE 2d 381 – Ill: Appellate Court, 2nd Dist. 1984

Agreements that are signed indicate that the parties intend to be bound the agreement’s terms.

“A contract signed by the party…may be enforced against him.” In re Marriage of Kloster, 469 NE 2d 381 – Ill: Appellate Court, 2nd Dist. 1984

“The law is clear in Illinois that where the parties reduce the agreement to writing and its signature by them is a condition precedent to its completion, no contract will exist until that is done.” Lynge v. Kunstmann, 418 NE 2d 1140 – Ill: Appellate Court, 2nd Dist. 1981

The court CANNOT change the terms of a signed divorce agreement after the agreement is deemed agreed to.

“The terms of the agreement, except those providing for the support and parental responsibility allocation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the agreement is unconscionable.” 750 ILCS 5/502(b)

The only exception is that the court must approve all agreements regarding child support, parenting time and parental decision-making before that portion of the agreement is binding.

“The right to make decisions regarding a child’s upbringing, including decisions regarding a child’s education, health care, and religious training, is clearly within the authority granted a custodial parent under the Act.”  IN RE MARRIAGE OF DUFFY AND PILNY, 718 NE 2d 286 – Ill: Appellate Court, 2nd Dist. 1999

How To Change An Agreement After Mediation In An Illinois Divorce

After the agreement is entered into, the only way to change the agreement is to argue that the agreement was unconscionable.

“If the court finds the agreement unconscionable, it may request the parties to submit a revised agreement or upon hearing, may make orders for the disposition of property, maintenance, child support and other matters.”  750 ICLS 5/502(c)

Unconscionability is the “[d]egree of unreasonableness and unfairness of a contract or deal prompting a court to modify or nullify it.” Black’s Law Dictionary (10th ed. 2014)

“Unconscionability can be either “procedural” or “substantive” or a combination of both…Procedural unconscionability refers to a situation where a term is so difficult to find, read, or understand that the plaintiff cannot fairly be said to have been aware he was agreeing to it, and also takes into account a lack of bargaining power.” Razor v. Hyundai Motor America, 222 Ill. 2d 75, 100 (Ill. 2006)

If the agreement appears to be nonsense, then a court can declare the agreement void simply by reading the agreement.

“A contract is substantively unconscionable, and thus unenforceable, where the terms are significantly one-sided or oppressive.” In re Marriage of Iqbal, 2014 IL App (2d) 13130

A terrible deal can be so terrible that an Illinois divorce court will throw the agreement out.

Illinois divorce courts will look at the “relative economic positions immediately following the making of the agreement.” (Emphasis omitted.) In re Marriage of Nilles, 2011 IL App (2d) 100528

Any request to void the agreement must be made before the agreement is incorporated into the final judgment for dissolution of marriage.

An agreement’s “terms shall be set forth in the judgment, and the parties shall be ordered to perform under such terms” 750 ILCS 5/502(d)

Modifying An Agreement In An Illinois Divorce

If you’re having second thoughts about the agreement you entered into in your divorce, I have good news: virtually everything in an Illinois divorce is modifiable.

Maintenance and child support are modifiable. “[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)

Parenting time is modifiable. “Parenting time may be modified at any time, without a showing of serious endangerment, upon a showing of changed circumstances that necessitates modification to serve the best interests of the child.” 750 ILCS 5/610.5(a)

Your Illinois divorce court will have to agree that the modification is appropriate considering the circumstances.

There’s one thing you CANNOT modify in an Illinois divorce: division of property.

“Property provisions of an agreement are never modifiable.” 750 ILCS 5/502(f)

“The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State.” 750 ILCS 5/510(b)

If you’ve entered into a mediated agreement and are having second thoughts or if your spouse is protesting the agreement they already entered into, contact my Chicago, Illinois family law firm to speak with an experienced Illinois family law attorney.

source https://rdklegal.com/can-you-change-an-agreement-after-mediation-in-an-illinois-divorce/

Mental Cruelty And Emotional Abuse In An Illinois Divorce

In the course of a marriage and especially a divorce, one party is going to say cruel and hurtful things to the other party. Sticks and stones might break bones…but words do hurt. Does mental cruelty and/or emotional abuse impact an Illinois divorce?

The document which starts a divorce, the summons, warns both parties to be nice to each other.

The summons “restrain[s] both parties from physically abusing, harassing, intimidating, striking, or interfering with the personal liberty of the other party or the minor children of either party” Ill. S. Ct. R. 101(e)(1)

Unfortunately, the summons’ admonition against abuse is unenforceable. Furthermore, Illinois courts barely weigh abusive behavior between couples at all.  

Mental Cruelty Is Not A Ground For Divorce In Illinois

Before 2016 there were a multitude of grounds for divorce in Illinois. One of those grounds was “mental cruelty.”

After 2016, all of the grounds for divorce were eliminated in Illinois and replaced by requiring an Illinois divorce court to make the following finding before granting a divorce.

“Irreconcilable differences have caused the irretrievable breakdown of the marriage and the court determines that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family.” 750 ILCS 5/401(a)

Mental cruelty, in any form, would be sufficient proof that irreconcilable differences between the two parties exist. Of course, the subsequent filing of a Petition For Dissolution of Marriage also would prove that irreconcilable differences have caused the irretrievable breakdown of the marriage.

For better or for worse, Illinois divorce laws are not especially concerned with mental cruelty or emotional abuse.

Mental Cruelty’s Effect On An Illinois Divorce

Illinois courts really do not look at bad behavior much, if at all when allocating marital assets, awarding support or even determining parenting time.

Illinois divorce courts “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503(d)(emphasis mine)

“[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, and the maintenance may be paid from the income or property of the other spouse.” 750 ILCS 5/504(a)(emphasis mine)

In Illinois, child support is a pure calculation without regard to a parent’s behavior. Illinois child support is “based upon the parents’ combined net income estimated to have been allocated for the support of the child if the parents and child were living in an intact household.” 750 ILCS 5/501(a)(1)(D)

Mental cruelty towards a spouse or other parent will not even affect parenting time between a parent and a child.

“In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.” 750 ILCS 5/602.7(c)

“Parental conduct that does not adversely affect the child is not to be considered in the custody determination.” In re Marriage of Stone, 164 Ill. App. 3d 1046, 1053 (1987)

If the parties are married, the courts presume that the parents married each other and had children together because they agreed they would both be fit parents.

 “It is presumed both parents are fit and the court shall not place any restrictions on parenting time.” 750 ILCS 5/602.7(b)

In reality, saying cruel hateful things that can be characterized as emotional abuse or mental cruelty will certainly affect a parent’s parenting time and especially their parental decision-making.

Emotionally Abusive Parents In An Illinois Divorce

Illinois divorce courts make two rulings in regards to minor children: 1) who makes the decisions for the children and 2) who spends what time with the children.

“The court shall allocate decision-making responsibilities according to the child’s best interests.” 750 ILCS 5/602.5(a)

“In determining the child’s best interests for purposes of allocating significant decision-making responsibilities, the court shall consider…

the ability of the parents to cooperate to make decisions, or the level of conflict between the parties that may affect their ability to share decision-making” 750 ILCS 5/602.5(c)(4)

Mental cruelty and/or emotional abuse is evidence that a parent cannot effectively communicate with the other parent.

Joint parental decision-making used to be referred to as “joint custody” in Illinois. “Joint custody requires extensive contact and intensive communication, it cannot work between belligerent parents.” In re Marriage of Drummond, 509 NE 2d 707 – Ill: Appellate Court, 4th Dist. 1987

The presence of an emotionally abusive parent will require the division of the allocated parental decision-making responsibilities.

An emotionally abusive parent should not expect to receive half of the allocated decision-making responsibilities. “Nothing in this Act requires that each parent be allocated decision-making responsibilities.” 750 ILCS 5/602.5(a)

In reality, the responsibility for decision-making is actually determined by the amount of time a parent has with a child. There is little to constrain a parent’s decisions when they are the only adult with the child.

“A parent shall have sole responsibility for making routine decisions with respect to the child and for emergency decisions affecting the child’s health and safety during that parent’s parenting time.” 750 ILCS 5/602.5(d)

Parenting time is less impacted by bad parental behavior. A parent must merely be capable of facilitating the transition between the two homes without being abusive.

“Unless the parents present a mutually agreed written parenting plan and that plan is approved by the court, the court shall allocate parenting time.” 750 ILCS 5/602.7(b)

“The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 5/602.7(a)

In determining the child’s best interests for purposes of allocating parenting time, the court shall consider…the distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement” 750 ILCS 5/602.7(b)

Of course, if the parent is abusive towards the child, that parent can expect to have their parenting time curtailed or supervised.

Illinois divorce courts will consider “the occurrence of abuse against the child or other member of the child’s household” 750 ILCS 5/602.7(b)(9)

How To Get An Illinois Divorce Court To Look At Mental Cruelty Or Emotionally Abusive Behavior

Illinois divorce courts are very impatient in regards to “he said/she said” stories.

Mental cruelty and emotionally abusive behavior have to rise to the level of harassment for an Illinois divorce court to take note and do something.

“Harass” or “harassing” means knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances, that would cause a reasonable person emotional distress and does cause emotional distress to another.” 720 ILCS 5/26.5-0.1

Upon a finding of harassment, a court can order a temporary injunction against the abusive party to cease such behavior.

An Illinois court may issue “a temporary restraining order or preliminary injunction, accompanied by affidavit showing a factual basis for any of the following relief:

enjoining a party from striking or interfering with the personal liberty of the other party or of any child;” 750 ILCS 5/501(a)(2)(iii)

““Interference with personal liberty” means committing or threatening physical abuse, harassment, intimidation or willful deprivation so as to compel another to engage in conduct from which she or he has a right to abstain or to refrain from conduct in which she or he has a right to engage.” 750 ILCS 60/103(9)

An injunction once issued forbids a party to a case from doing something. In the case of an abusive spouse or ex-spouse, that injunction will forbid the abuser from doing whatever behavior the court deems to be abusive.

The penalty for engaging in further abusive behavior is a finding of indirect civil contempt which can result in fines or even jail time.

While an Illinois divorce court can enjoin a party from committing further abuse, courts typically rely on the their power to issue an order of protection.

The standard of behavior deemed to cause “emotional distress” in order to issue an order of protection is specific and, frankly, high. If the abuse is not an outburst in public, then it must be “threatening physical force, confinement or restraint on one or more occasions.” 750 ILCS 60/103(7)(vi)

When the parties to a divorce are parents, allegations of emotional abuse can be thoroughly investigated by a Guardian Ad Litem or Child Representative. The Guardian Ad Litem or Child Representative is likely to take allegations of emotional abuse seriously because they inevitably spill over into the parent-child relationship. A Guardian Ad Litem will subsequently report the emotional abuse to the court which will, no doubt, color the judge’s opinion of the parties and their allocated parenting time and parental decision-making responsibilities.

Emotional abuse never justifies physical retaliation in the eyes of Illinois’ law.

“It has long been held that one may not provoke physical retaliation on the part of his or her spouse and complain of such retaliation unless it is out of all proportion to the provocation.” Stanard v. Stanard, 247 NE 2d 438 – Ill: Appellate Court, 3rd Dist. 1969

If your spouse is being cruel…get a divorce already and exercise your rights. If you’re being accused of amorphous claims such as “emotional abuse” and “mental cruelty” you need to remind the court that those terms carry little weight under Illinois law. Either way, contact my Chicago, Illinois family law firm to properly protect yourself from your spouse.

source https://rdklegal.com/mental-cruelty-and-emotional-abuse-in-an-illinois-divorce/

Job Diaries In An Illinois Divorce

In the Bible, the Book of Job is about a man who suffers a series of horrible tests in order to prove that he is worthy. In an Illinois divorce, a job diary is quite similar.

When one party in a divorce is unemployed or underemployed, an Illinois divorce hangs in limbo because that party’s income cannot be determined for the purposes of child support, maintenance, marital property allocation and contribution to college 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)

Even division of marital assets requires a court to consider the parties’ income and employability. Illinois divorce courts “shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:…the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties” 750 ILCS 5/503(d)

Until both parties true earning potential is determined, an Illinois court cannot make final determinations and the fully employed party will be reluctant to settle under the current employment circumstances.

Illinois divorce courts are empowered to order the unemployed or underemployed party to complete a job diary.

A job diary’s purpose is threefold: 1) to employ the party, 2) to prove the party can or cannot find a job, and/or 3) to prove the party refuses to find appropriate employment.

An Illinois Divorce Court’s Authority To Order A Job Diary

During the course of an Illinois divorce, “Either party may petition or move for… appropriate temporary relief” 750 ILCS 5/501(a)

This is statute is extremely broad…and, as temporary relief, probably only applies before the divorce is granted. Still, a broad grant of power to a court is power that must be observed if the trial court chooses to wield that power.

To avoid a job diary…get a job. Failing that, the court can specifically order a job diary only if you are truly unemployed.

“Whenever it is determined in a proceeding to establish or enforce a child support or maintenance obligation that the person owing a duty of support is unemployed, the court may order the person to seek employment and report periodically to the court with a diary, listing or other memorandum of his or her efforts in accordance with such order” 750 ILCS 5/505.1(a)

This statute only requires the person who would OWE support to use a job diary. The person asking for support cannot be ordered to get a job diary under this statute.

This begs the question what is “unemployed.” Is it working part time? Is it having a job that is beneath your capacity? Is it working for yourself?

If you’re working for yourself, a court is only specifically empowered to order a job diary after a self-employed party has fallen behind on a current child support order.

“If a parent who is found guilty of contempt for failure to comply with an order to pay support is a person who conducts a business or who is self-employed, the court in addition to other penalties provided by law may order that the parent… seek employment and report periodically to the court with a diary, listing, or other memorandum of his or her employment search efforts” 750 ILCS 5/505(b)

Imputing Income After A Job Diary Is Ordered In An Illinois Divorce Court

In my 15 years as a divorce lawyer I have never seen someone say, “Boy, I’m sure glad I did that job diary the court ordered. It found my dream job and am now able to pay the maintenance and child support I should!”

Job diaries don’t get people jobs! Job diaries either prove that the reluctant job seeker is truly unemployable or that they are underemployed and should have their income imputed.

A job diary that extends for a year may finally prove that a person cannot work or cannot work beyond a particular level. This usually involves hundreds of rejections and numerous firings. This isn’t fun for anyone.

More likely, a job diary will help an Illinois divorce judge determine what the job seeker’s income should be if, in fact, they were dutifully seeking and finding appropriate employment. Once determined, that income will be “imputed” to that party.

“Imputation is appropriate in cases of voluntary unemployment or voluntary underemployment.” In re Marriage of Ruvola, 2017 IL App (2d) 160737

“Courts should consider the level at which the spouse is able to contribute, not merely the level at which he is willing to work.” In re Marriage of Blume, 59 NE 3d 135 – Ill: Appellate Court, 3rd Dist. 2016

“In order to impute income to a party, the court must find that the party is voluntarily unemployed, is attempting to evade a support obligation, or has unreasonably failed to take advantage of an employment opportunity.” In re parentage of M.M., 2015 IL App (2d) 140772, ¶ 44, 390 Ill.Dec. 927, 29 N.E.3d 1197.

“For the purpose of imputing income, a court must find one of the following: (1) the payor has become voluntarily unemployed, (2) the payor is attempting to evade a support obligation, or (3) the payor has unreasonably failed to take advantage of an employment opportunity.” In re Marriage of Blume, 59 NE 3d 135 – Ill: Appellate Court, 3rd Dist. 2016

In one Illinois divorce case, the court found that the job diary was crucial evidence in determining the party’s unwillingness to work to their potential. “The trial court found that petitioner displayed a “lack of effort…in obtaining employment” and is “voluntar[ily] underemployed.” The court noted that “much of [petitioner’s job-search diary] appears to be attempts to obtain part time work in the food industry — with no connection to the Petitioner’s experience or education.” Referencing petitioner’s self-designation on his business card as semi-retired, the court asked, “What employer would want to hire such an applicant for full time gainful employment under those conditions?” The court noted that, despite petitioner’s attempted suicide and subsequent psychiatric treatment, he “appears to be healthy and able to sustain employment.” The court imputed to petitioner yearly income of $25,000.” In re Marriage of Ruvola, 2017 IL App (2d) 160737

Illinois divorce courts will look at past employment and education to determine what type of position a party should be working in.

“The court was indeed justified in finding that petitioner is voluntarily underemployed, because of his failure to seek a position within his field of training.” In re Marriage of Ruvola, 83 NE 3d 19 – Ill: Appellate Court, 2nd Dist. 2017

Until an imputation of income is finally made, the job seeker should be off the hook for paying child support beyond what they currently earn.

A “court [can] reserve the issue of child support until [a spouse is] employed and order[ that spouse] to maintain a job diary” Shen v. Shen, 35 NE 3d 1178 – Ill: Appellate Court, 1st Dist., 3rd Div. 2015

What Happens If A Spouse Doesn’t Maintain A Job Diary During An Illinois Divorce?

As described above, the court will simply impute an income to that spouse for the purposes of support and division of assets.

If the other spouse is feeling petty or truly believes in their former spouse’s career prospects, they may ask the court to find the reluctant job seeker in contempt of court.

If a party “was required, by court order, to continue to search for employment…[their] failure to do so might be contempt of the court’s order.” In re Marriage of Reimer, 902 NE 2d 132 – Ill: Appellate Court, 3rd Dist. 2009

A finding of civil contempt for failure to follow a court’s order can allow the court impose fines and/or jail time.
A civil contemnor “are imprisoned only until they comply with the orders of the court, and this they may do at any time. They carry the keys of their prison in their own pockets.” In re Nevitt, 117 F. 448, 460 (8th Cir. 1902)

The reluctant job seeker is not going to be able to pay a fine or find a job if they are in jail…so don’t expect a judge to order much from a finding of contempt beyond an order for attorney’s fees.

I tell my clients, “This is America! No one ever came here for the scenery. We are all here to work.”

Despite this, you cannot make people work that don’t want to work. You can make them look for work, though.

In the immortal words of a 1950’s doo wop group:

“Lord, and when I get the paper I read it through and throu-ough
My girl never fail to see if there is any work for me…
I better go back to the house, hear that woman’s mouth
Preachin’ and a cryin’, tell me that I’m lyin’ about a job
That I never could find” The Silhouettes, “Get A Job,” single, 1958.

If you want your spouse to get a job or a better job contact my Chicago, Illinois family law firm to force them to find the job of YOUR dreams or at least impute the appropriate income to them.

source https://rdklegal.com/job-diaries-in-an-illinois-divorce/

Virtual Or Electronic Parenting Time In Illinois

Being apart from one’s children is the worst part of a divorce. Thankfully, modern technology allows for regular phone calls, FaceTime and Zoom between parents and children during the other parent’s parenting time.

When is this electronic or virtual parenting time allowed after an Illinois divorce?

Virtual/Electronic Communication Between A Child And A Parent Is Governed By The Parenting Plan After An Illinois Divorce.

When the parents of a child have a divorce or parentage action pending in an Illinois divorce court, both parents must submit a proposed parenting plan.

“All parents, within 120 days after service or filing of any petition for allocation of parental responsibilities, must file with the court, either jointly or separately, a proposed parenting plan.” 750 ILCS 5/602.10(a)

A parenting plan must include “provisions for communications, including electronic communications, with the child during the other parent’s parenting time” 750 ILCS 5/602.10(f)(11)

Those provisions for electronic communication are up to each individual parent to propose and negotiate amongst themselves.

“[T]he parents may agree upon and submit a parenting plan at any time after the commencement of a proceeding until prior to the entry of a judgment of dissolution of marriage.” 750 ILCS 5/602.10(d)

If the parents cannot come to an agreement regarding electronic communication (or anything else regarding parenting) the parents must go to mediation.

“The court shall order mediation to assist the parents in formulating or modifying a parenting plan or in implementing a parenting plan unless the court determines that impediments to mediation exist.” 750 ILCS 5/602.10(c)

If there’s no agreement regarding electronic parenting time (or any other parenting issue), the court will conduct a full evidentiary hearing to determine parenting time.

“In the absence of filing of one or more parenting plans, the court must conduct an evidentiary hearing to allocate parental responsibilities.” 750 ILCS 5/602.10(b)

An Illinois divorce court will always award electronic or virtual parenting time on a reasonable basis because “It [is] in the minor child’s best interests to maximize involvement of both parents.” In re Marriage of Perez, 2015 IL App (3d) 140876

The court doesn’t even have to adopt the parents’ electronic parenting time agreement if the court thinks the agreement is not in the child’s best interests. For example, the court can intervene when the parents agree to a nightly phone call that the judge thinks is past the child’s bedtime.

“If the court does not approve the parenting plan, the court shall make express findings of the reason or reasons for its refusal to approve the plan. The court, on its own motion, may conduct an evidentiary hearing to determine whether the parenting plan is in the child’s best interests.” 750 ILCS 5/602.10(d)

Parents often have unrealistic expectations of how long a child can maintain a phone call or a video call.

“Electronic communication is helpful in these situations, but a 4-year-old child has little patience for or understanding of the technology. Adults are better suited to using electronic communication with each other, even though doing so…is an inconvenience for the couple.” PD v. JACK A., 87 NE 3d 1040 – Ill: Appellate Court, 2nd Dist. 2017

Courts have seen overly cumbersome electronic communication agreements and will quickly modify them to accommodate the reality of the situation.

If the parties and the court forget to include language regarding electronic communication in the parenting plan, then whoever is exercising parenting time with the child will have complete control of the child’s communication with everyone…including the other parent while the child is in their care.

“A parent shall have sole responsibility for making routine decisions with respect to the child and for emergency decisions affecting the child’s health and safety during that parent’s parenting time” 750 ILCS 5/602.5(d)

How To Enforce Electronic Or Virtual Parenting Time In Illinois

The parent who is exercising physical parenting time has a duty to follow the parenting plan and ensure that their child is communicating with the other parent pursuant to the parenting plan.

A failure to allow the child to communicate with the other parent will result in the court making a finding of indirect contempt against that parent.

Invariably, the parent who is frustrating the communication will blame the child. “Johnny doesn’t want to talk to his dad.”

Without further investigation, this will actually relieve the parent frustrating communication of any finding of contempt.

The parent frustrating the communication must merely show that “the violation was not willful and contumacious and that he or she had a valid excuse for failing to follow the order.” In re Marriage of Knoll, 2016 IL App (1st) 152494, ¶ 50, 65 N.E.3d 878.

The admission that the child does not want to talk to the other parent allows other remedies, however. A court can make radical changes in a child’s schedule in order to re-establish a relationship with the parent they will not communicate with.

“The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 5/602.7(a)

“In determining the child’s best interests for purposes of allocating significant decision-making responsibilities, the court shall consider”

the ability of the parents to cooperate to make decisions, or the level of conflict between the parties that may affect their ability to share decision-making;

the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.” (emphasis mine) 750 ILCS 5/600(c)

“The court may modify an order restricting parental responsibilities if, after a hearing, the court finds by a preponderance of the evidence that a modification is in the child’s best interests based on (i) a change of circumstances that occurred after the entry of an order restricting parental responsibilities;  or (ii) conduct of which the court was previously unaware that seriously endangers the child.  In determining whether to modify an order under this subsection, the court must consider factors that include, but need not be limited to, the following:

[P]ersistent continuing interference with the other parent’s access to the child, except for actions taken with a reasonable, good-faith belief that they are necessary to protect the child’s safety pending adjudication of the facts underlying that belief, provided that the interfering parent initiates a proceeding to determine those facts as soon as practicable.” (emphasis mine) 750 ILCS 5/603.10(b)

The parents must encourage their children to communicate with both parents or face radical changes in custody as a remedy for what may be perceived as parental alienation.

Electronic Parenting Time Is NOT a Substitute For In-Person Parenting Time In Illinois

While a phone call or a video call is great, it is not real parenting time. A parent should not accept electronic or virtual communication as a substitute for actual, in-person parenting time.

A “court may not use the availability of electronic communication as a factor in support of a removal of a child by the custodial parent from Illinois.” 750 ILCS 5/609(c) (West 2010)

If a court cannot consider electronic parenting time when allowing the removal of a child from Illinois, the court should not consider electronic parenting time as any kind of substitute for parenting time.

Electronic Or Virtual Parenting Time As A Substitute For In-Person Parenting Time

Sometimes something horrible happens where a child is no longer considered safe with in the direct presence and custody of a parent. If, God forbid, something terrible happens, the other parent will attempt to limit in-person parenting time to exclusively electronic or virtual parenting time for the sake of the child’s physical safety.

“After a hearing, if the court finds by a preponderance of the evidence that a parent engaged in any conduct that seriously endangered the child’s mental, moral, or physical health or that significantly impaired the child’s emotional development, the court shall enter orders as necessary to protect the child.  Such orders may include, but are not limited to, orders for one or more of the following:

(1) a reduction, elimination, or other adjustment of the parent’s decision-making responsibilities or parenting time, or both decision-making responsibilities and parenting time;” 750 ILCS 5/603.10(a)

Electronic or virtual communication may be the only reasonable substitute for a parent who is able to communicate with their child in a healthy way but is not able to guarantee that child’s safety in their presence.

If you are seeking electronic or virtual communication with your child or you are seeking electronic or virtual communication for your child and their other parent, contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Illinois divorce attorney.

source https://rdklegal.com/virtual-or-electronic-parenting-time-in-illinois/

Divorce In Illinois Without A Spouse’s Signature In Illinois

“Send me the divorce papers,” your spouse may yell at you in a moment of frustration. But, then what? No one just automatically signs divorce papers. More often than not, a spouse will refuse to sign divorce papers just to spite their other spouse.

How do you get a divorce in Illinois when a spouse will not provide their signature?

What Are Divorce Papers In Illinois?

Divorce papers to be signed are the proposed agreed documents which would bind the parties by those document’s terms after the divorce.

“To promote amicable settlement of disputes between parties to a marriage attendant upon the dissolution of their marriage, the parties may enter into an agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them, support, parental responsibility allocation of their children, and support of their children…after the children attain majority.” 750 ILCS 5/502(a)

Every divorce in Illinois is essentially finalized by one to three written documents: The Judgment Of Dissolution Of Marriage, The Marital Settlement Agreement and/or The Allocation of Parenting Time and Parental Responsibilities.

“Any agreement pursuant to [the Illinois Marriage and Dissolution of Marriage Act] must be in writing” 750 ILCS 5/502(a)

The Judgment Of Dissolution Of Marriage restates all the necessary allegations as provided by the Illinois statute, that those allegations were proven and grants the actual divorce by stating that “the bonds of matrimony heretofore existing between [Name] and [Name] the parties be dissolved and the marriage is accordingly dissolved as to both parties.”

If the divorce is very simple, i.e. no kids, almost no assets, then those issues can be squeezed into the Judgment of Dissolution of Marriage.

If there are any significant assets or debts that need to be allocated between the two parties or there is a maintenance or child support award, a Judgment Of Dissolution will need to incorporate a Marital Settlement Agreement.

The Judgment For Dissolution Of Marriage will include language stating “that the Marital Settlement Agreement, included and attached is hereby incorporated into and merged with this Judgment for Dissolution of Marriage and each and every provision is binding upon both parties.”

The Marital Settlement Agreement will include all of the details of the parties’ finances both marital and non-marital with a description of how the marital debts and assets will be allocated between the two parties. If there is an ongoing support obligation between the parties, that will also be detailed in the Marital Settlement Agreement.

If the parties share any children together who are below the age of 18, the Judgment For Dissolution Of Marriage will also incorporate an Allocation of Parenting Time and Parental Responsibilities.

The Allocation of Parenting Time and Parental Responsibilities details who will spend what time with the children and which parent will be responsible for what aspects of the children’s lives.

The reason there are separate documents and not just one set of divorce papers are twofold: 1) For the sake of family harmony post-divorce, financial matters and matters related to the children are kept completely separate, 2)  The Judgment of Dissolution Of Marriage is an order while the Marital Settlement Agreement and the Allocation of Parenting Time and Parental Responsibilities are contracts.

“The provisions of a [marital] settlement agreement are to be interpreted by normal contract rules.” In re Marriage of Kloster, 469 NE 2d 381 – Ill: Appellate Court, 2nd Dist. 1984

All of these documents must finally be approved by an Illinois divorce judge.

“The terms of the agreement, except those providing for the support and parental responsibility allocation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the agreement is unconscionable.” 750 ILCS 5/502(b)

“Agreements regarding the disposition of property and maintenance are binding upon the court unless they are found to be unconscionable.” In re Marriage of Hightower, 358 Ill. App. 3d 165, 171 (2005)

Judges give stricter scrutiny to the Allocation of Parenting Time and Parental Responsibilities (also knowns as a parenting plan) than they do a Marital Settlement Agreement.

“The agreement is binding upon the court unless it finds, after considering the circumstances of the parties and any other relevant evidence produced by the parties, that the agreement is not in the best interests of the child.” 750 ILCS 5/602.10(d)

The written agreement is what matters. Anything that is said outside the written agreement is irrelevant if the written agreement says otherwise.

“The terms of the agreement incorporated into the judgment are binding if there is any conflict between the terms of the agreement and any testimony made at an uncontested prove-up hearing on the grounds or the substance of the agreement.” 750 ILCS 5/502(b)

A signature is necessary is for these Illinois divorce contracts to be enforceable.

“The law is clear in Illinois that where the parties reduce the agreement to writing and its signature by them is a condition precedent to its completion, no contract will exist until that is done.” Lynge v. Kunstmann, 418 NE 2d 1140 – Ill: Appellate Court, 2nd Dist. 1981

What Happens When A Spouse Won’t Provide A Signature To An Illinois Divorce?

If a spouse will not sign the final divorce documents, you cannot get divorced in Illinois unless you default that spouse.

This requires filing the Petition For Dissolution Of Marriage, attaching a summons and serving both documents upon the spouse who refuses to sign.

The spouse served with the summons then has 30 days to file their appearance in the matter.

“[T]he summons shall recite that petitioner has commenced suit for dissolution of marriage or legal separation and shall require the respondent to file his or her appearance not later than 30 days from the day the summons is served and to plead to the petitioner’s petition within 30 days from the day the petition is filed.” 750 ILCS 5/411

Failure to file an appearance will allow the spouse who filed the petition to proceed on a motion to default the other spouse.  

A motion for default will result in a default order declaring the Respondent “in default.” The Petitioner must alert the defaulted spouse as to their defaulted status.

“Notice of entry of default order. (a) Upon the entry of an order of default, the attorney for the moving party shall immediately give notice thereof to each party who has appeared, against whom the order was entered, or such party’s attorney of record. However, the failure of the attorney to give the notice does not impair the force, validity or effect of the order.” 735 ILCS 5/2-1302

After the spouse is defaulted, the Petitioner can then proceed on a default judgment of dissolution of marriage. No signature is required for a default judgment for dissolution of marriage but the allegations must still be proven via testimony.

“Judgment by default may be entered for want of an appearance, or for failure to plead, but the court may in either case, require proof of the allegations of the pleadings upon which relief is sought.” 735 ILCS 5/2-1301(d)

The allegations in a Petitioner’s Petition For Dissolution Of Marriage may be extreme. The Petitioner can ask the court for full custody of the children, all of the assets, none of the debts, maintenance/child support for themselves and no obligation to pay maintenance to the defaulted spouse. If the Respondent is not there to counter any of that testimony, the court is likely to grant the Petitioner’s requests in a final order.

Of course, good luck getting a spouse who wouldn’t even sign an agreement to cooperate with a default judgment of dissolution of marriage. Default judgments will always be followed by years of contempt petitions in order to secure enforcement of the terms of that default judgment.

It’s hard enough to get along with your spouse when you are married. Imagine how difficult it will be when you are divorced. Make sure you and your spouse are clear as to the terms of a final agreement and get them to commit to that agreement with a signature. Contact my Chicago, Illinois family law firm to learn more about how to come to a binding agreement with your spouse that works for you, your spouse and your children.

source https://rdklegal.com/divorce-in-illinois-without-a-spouses-signature-in-illinois/

Can A Spouse Throw Out My Belongings In Illinois?

We’ve all seen the trope in movies on TV where an angry wife throws her husband’s things out the bedroom window onto the front lawn. Some movies take it even further and a spouse will burn the other spouse’s things in an effort to “get her groove back.” In real life, however, this doesn’t happen very often.

Things go missing over the course of a divorce or separation. Usually the other spouse just answers with a shrug and an “I don’t know.”

A divorcing couple will have access to each other’s household items and those items get thrown out or disappear over the course of time. What duty does each spouse have towards the other spouse’s things? Can a spouse throw out the belongings of their spouse? What happens if items are thrown out or go missing during a divorce?

Coming To An Agreement About Personal Belongings In An Illinois Divorce

When people call me up about a divorce, I always tell them, “If it’s between hiring a divorce lawyer and paying the first month’s rent on an apartment for yourself…pay the rent.”

A divorce lawyer can do nothing for your physical, mental and emotional health. A new place to live can give you the space you need to adequately rest and make the next subsequent strategic decision in your divorce. Also, a new apartment is a great place to safely store all your stuff that you want to keep during and after the divorce.

When most couples finally get divorced their Marital Settlement Agreement includes a clause that will read: “The parties have previously divided all furniture, furnishing, personal jewelry, clothing, books, and memorabilia equally and to their mutual satisfaction. Said property, as divided, shall be deemed the sole property of the party who has possession, free and clear of any claim of the other.”

This keeps either party from having to maintain an inventory of their personal belongings. What’s mine is mine. What’s yours is yours.

Some people can’t move out with all their things. Spouses who leave the marital residence leave items at the marital residence and then are told that that those items are no longer available when the final divorce settlement is drawn up.

What Happens When Items Get Thrown Out In An Illinois Divorce

When an item goes missing that one spouse wants to account for in the divorce, that spouse is faced with two challenges: 1) What happened to the item and 2) What was the item worth?

If the items were incontrovertibly thrown out by your spouse there are a variety of ways to ask an Illinois divorce court to force your spouse to compensate you for the missing items.

In theory, Illinois divorce courts don’t care about bad behavior. They just care about fair distribution of marital assets.

Illinois divorce courts “divide…marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503(d)

When Illinois divorce courts make that distribution of marital assets the courts are allowed to consider, “each party’s contribution to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property” 750 ILCS 5/503(d)(1) (emphasis mine)

Throwing something away is de facto decreasing that thing’s value to zero. A court can simply give the spouse who had their things thrown out a bigger piece of the marital pie to compensate them.

In my experience, spouses rarely openly confess to throwing things of value in the garbage. Furthermore, outside of video evidence, how could you possibly prove that a spouse threw something in the garbage. “Who else could have done it?” is usually not a sufficient evidentiary standard in an Illinois court of law.

What Happens When An Item Goes Missing In An Illinois Divorce?

When a spouse denies that they threw an item out, you don’t actually need to prove that they threw it out. Instead, you can simply allege a dissipation of assets which triggers an Illinois law which requires the alleged dissipater to prove they didn’t throw the item out.

“Dissipation is defined as the use of marital property for one spouse’s sole benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.” In re Marriage of Tietz, 605 NE 2d 670 – Ill: Appellate Court, 4th Dist. 1992

Dissipation is a concept usually used for money spent on frivolous non-marital purposes: alcohol, drugs, boyfriends/girlfriends. Conceptually, throwing out or destroying something of value is no different than dissipating marital funds.

“Dissipate” means “[t]o destroy or waste, as to expend funds foolishly.” (Black’s Law Dictionary 425 (5th ed. 1979).)

Dissipation requires a very formal notice in order to shift the burden of proof to the spouse who denies dissipating.

“[A] notice of intent to claim dissipation shall be given no later than 60 days before trial or 30 days after discovery closes, whichever is later;

(ii) the notice of intent to claim dissipation shall contain, at a minimum, a date or period of time during which the marriage began undergoing an irretrievable breakdown, an identification of the property dissipated, and a date or period of time during which the dissipation occurred;

(iii) a certificate or service of the notice of intent to claim dissipation shall be filed with the clerk of the court and be served pursuant to applicable rules” 750 ILCS 5/503(d)(2)

You can only go so far back in alleging a spouse threw something away.

“[N]o dissipation shall be deemed to have occurred prior to 3 years after the party claiming dissipation knew or should have known of the dissipation, but in no event prior to 5 years before the filing of the petition for dissolution of marriage” 750 ILCS 5/503(d)(2)”

It is hard to imagine anything with any value going missing and the aggrieved party not noticing it for over 3 years. So, don’t expect to reach too far back.

At this point, the alleged dissipater must prove they did not dissipate, destroy, throw away the funds/items.

“The general principle is that a person charged with the dissipation is under an obligation to establish by clear and specific evidence how the funds were spent.”In re Marriage of Petrovich, 507 NE 2d 207 – Ill: Appellate Court, 2nd Dist. 1987

Testimony such as “I don’t remember” will not be sufficient to avoid a finding of dissipation.

“General and vague statements that the funds were spent on marital expenses or to pay bills are inadequate to avoid a finding of dissipation.” Id.

“[T]he circuit court is required to find dissipation where the charged party fails to meet his burden of showing that marital funds were used for marital purposes.” In re Marriage of Hubbs, 843 NE 2d 478 – Ill: Appellate Court, 5th Dist. 2006

In the end, the court will assess the credibility of the alleged dissipater as to whether he/she threw out or destroyed the items in question.

“In making its decision as to dissipation, the trial court must determine the credibility of the spouse charged with dissipation.” In re: the Marriage of Berberet, 2012 IL App (4th) 110749

Upon a finding of dissipation, the court allocates marital assets based on “the dissipation by each party of the marital property” 750 ILCS 5/503(d)(2)

The problem is determining the value of that dissipated property so that the court can award the aggrieved party something of equivalent value.

Valuing Property That Was Thrown Away During An Illinois Divorce?

One man’s trash is another man’s treasure. The trouble is determining the value of something one person thought was trash and the other person thought was treasure.

The court is going to just assign the trashed item a value based on their own experience in the general marketplace of goods.

The only way to prove to the court that a missing item had a specific value is to present evidence.

“To place a specific value on an item of marital property, there must be competent evidence of its value presented. Generally, the valuation of assets in an action for dissolution of marriage is a question of fact, and the trial court’s determination will not be disturbed absent an abuse of discretion. But where a party does not offer evidence of an asset’s value, the party cannot complain as to the disposition of that asset by the court. Parties should not be allowed to benefit on review from their failure to introduce evidence at trial.” In re Marriage of Abu-Hashim, 2014 IL App (1st) 122997 (Citations Omitted)

How do you let a court inspect an item for quality when it is no longer available?

Hopefully there are similar items for sale. If so, the court could take judicial notice of the items value via Amazon, Ebay or other sites where the items are for sale in a reliable free-market auction format.

Items without equivalent products for sale will require the testimony of some kind of appraiser who will have to be certified as an expert witness in order to testify to their opinion as to missing item’s value.

You cannot say, “the guy at the pawn shop told me it was worth X” that is hearsay. In an Illinois court proceeding, you cannot testify to something that you do not have personal knowledge of or it is mere speculation.

When your spouse is throwing away things that you care about, they are doing anything from spring cleaning to actively trying to hurt you. Either way, it has to stop. Contact my Chicago, Illinois family law firm to speak with experienced Chicago divorce attorney about your options when your spouse throws away your things.

source https://rdklegal.com/can-a-spouse-throw-out-my-belongings-in-illinois/