Indemnification And Divorce In Illinois

Indemnification is an important concept in contract law. Most divorces are finalized by a contract which divides assets AND debts. Indemnification provides the functionality of how those debts are paid back and by whom. Debts, Divorce And Indemnification In Illinois Illinois divorce courts “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 503(d) “”[M]arital property” means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 503(a) (emphasis mine) “It is well settled that marital debts as well as marital assets must be distributed equitably.” In re Marriage of Lees, 224 Ill. App. 3d 691, 693 (Ill. App. Ct. 1992) The parties can agree on this division of debts or the court can order the debts to be divided equitably. Courts and parties have a great preference for assigning the responsibility for a party’s debts to the party themselves. This is because of the logistical nightmare that is required for one party to be responsible for the debts of another party. In fact, courts are inclined to order assets sold in order to pay off joint debts or debts that the other party would, alternatively, be responsible for. Parties to a divorce do not have to allow a judge to carve up their debts. They can come to mutual agreements regarding their debts and who will be responsible. This mutual contracting for debt responsibility is called “indemnification.” To indemnify is “[t]o reimburse (another) for a loss suffered because of a third party’s or one’s own act or default; [to] hold harmless….To promise to reimburse (another) for such a loss.” Black’s Law Dictionary (11th ed. 2019) The responsibility for those debts may be allocated by the final Marital Settlement Agreement but the third-party creditor does not care. The third-party creditor just wants their money. The third-party creditor does not care who they get their money from, the third-party creditor just wants their money no matter what the parties’ Marital Settlement Agreement says. Indemnification solves the “third-party creditor doesn’t care who it collects from” problem by creating an agreement between the parties that promises to reimburse the other party if a third-party creditor collects from the other party. Upon receiving a bill for a debt that was properly indemnified, the party should inform their indemnifier to pay the debt per the agreement. Failure to pay the debt per the agreement, will result in a […]

from Russell D. Knight | Family Lawyer Chicago https://rdklegal.com/indemnification-and-divorce-in-illinois/

How To Issue A Subpoena Outside of Illinois For An Illinois Divorce Case

A subpoena is “[a] writ or order commanding a person to appear before a court or other tribunal, subject to a penalty for failing to comply.” Black’s Law Dictionary (11th ed. 2019) Before email subpoenas really would make people come into court (or the lawyer’s office) with all the documents requested and then the lawyer who issued the subpoena would question the producer under oath. Today, most subpoena’s just request documents to be emailed with a certification by the custodian of records. People respond to subpoenas because if they do not reply to the subpoena as requested, the subpoena issuer can ask that the deponent (person who got the subpoena) be held in contempt of court. “The service of the rule to show cause or order of contempt upon the nonparty, except when the rule or order is initiated by the court, shall include a copy of the petition for rule and the discovery order or subpoena which is the basis for the petition for rule. The service of the rule to show cause or order of contempt upon the nonparty shall be made in the same manner as service of summons provided for under sections 2-202, 2-203(a)(1) and 2-203.1 of the Code of Civil Procedure.” Ill. Sup. Ct. R. 204(d)(2,3) If the deponent does not live in Illinois and doesn’t plan on visiting Illinois any time soon, then they might not care about getting held in contempt of court by an Illinois court. You will recall on the Dukes of Hazzard that the Duke boys would simply cross the state lines to avoid the Sheriff as the Sheriff had no jurisdiction to enforce the law in the other state. Illinois contempt orders are similarly toothless in other states. Therefore, in order to ensure cooperation from an out-of-state deponent, an Illinois subpoena issuer must hire local counsel in the deponent’s state to register the Illinois subpoena in the county where the deponent lives under the Uniform Interstate Depositions and Discovery Act. The Uniform Interstate Depositions and Discovery Act is a statute that 47 states have enacted. I’ll be citing the Act under the Act’s Uniform Illinois citation for clarity. Obviously, you’ll need to refer to the citation of whatever state you’re registering your subpoena in. “To request issuance of a subpoena under this Section, a party must submit a foreign subpoena to a clerk of court in the county in which […]

from Russell D. Knight | Family Lawyer Chicago https://rdklegal.com/how-to-issue-a-subpoena-outside-of-illinois-for-an-illinois-divorce-case/

Closing Arguments In An Illinois Divorce

A closing argument is “[i]n a trial, a lawyer’s final statement to the judge or jury before deliberation begins in which the lawyer request the judge or jury to consider the evidence and apply the law in her or her client’s favor” Black’s Law Dictionary (11th ed. 2019) In an Illinois divorce hearing or trial there is no jury. “There shall be no trial by jury” 50 ILCS 5/103. In an Illinois divorce, the closing argument is solely for an audience of one: the judge. The closing argument should apply the evidence presented to the law and present the judge with an obvious and fair conclusion based on the evidence and the law. The judge is not dumb. The judge already heard the evidence. The judge knows the law. The judge has already come to an approximate conclusion. The judge may have even told you what conclusion they are considering. In light of the fact that the judge probably has already made up their mind, you want to be sure that your closing argument is as obvious as possible based on the evidence you presented. Ironically, when preparing for a divorce hearing or trial, the first thing you should do is prepare the last thing that happens in the case: the closing argument. Using Your Closing Argument To Organize Your Entire Trial For the person who is going to give a closing argument, the closing argument’s first draft should be written like a wish list. Don’t worry about the “argument” part. Just focus on the evidence you hope your argument might apply to. Under Illinois family law this is very easy because the statute is so clear. Use the below bullet points as a checklist to determine what is the evidence that you need to present to make a closing argument. I’ve divided the checklist into sections because some subject matters may not be relevant to your trial. Note: After every item of evidence you hope to present, you should also present some corroborating evidence verifying that evidence. That’s why I remind you “How do we know that?” after every statutory factor (more on this later). Division of Assets What property is non-marital? 750 ILCS 5/504(a) How do we know that? What property is marital? 750 ILCS 5/504(b),(c) How do we know that? What contributions did each party make to the marital property? 750 ILCS 5/504(d)(1) How do we know that? What […]

from Russell D. Knight | Family Lawyer Chicago https://rdklegal.com/closing-arguments-in-an-illinois-divorce/