How To Find And Divide Overseas Bank Accounts In An Illinois Divorce

When a party to an Illinois divorce has an overseas bank account, that account must be disclosed and, if found to be marital property, equitably distributed by the court. If the overseas account is not disclosed, Illinois divorce courts possess limited powers to investigate bank accounts in other countries. In an Illinois divorce, locating and dividing overseas bank accounts requires a combination of legal strategy, discovery tools, and persistence. Courts may lack jurisdiction over the foreign bank…but not over the spouse who controls the accounts Marital Assets are Divisible In Illinois No Matter Where They Are Located If the foreign bank account can be properly shown to be a gift, inheritance or was completely acquired in advance of the marriage, the foreign bank account will be deemed non-marital property and awarded in its entirety to the party who holds that account. Beyond these exceptions, an overseas bank account will be deemed marital and, thus, divisible under Illinois law. An Illinois divorce court “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503(d) In Illinois, “’[M]arital property’ means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage”750 ILCS 5/503(a). Assets held in a foreign bank is no exception to the Illinois Marriage and Dissolution of Marriage’s broad scope which includes “all property” Determining If Overseas Bank Accounts Exist In An Illinois Divorce People who deposit money into foreign accounts are not getting a bank statement mailed to them here in the United States every month from the foreign bank. Determining whether a foreign bank account even exists depends on the disclosures of the party holding the foreign bank account. Every county in Illinois requires that divorcing parties fill out a financial affidavit when the divorce is filed. In Cook County, Illinois the rule is as follows: “(a) Pre-Judgment Disclosure –In all pre-judgment proceedings in which a party is seeking division of the marital estate, to establish, modify or enforce an order for maintenance, child support, or educational expenses pursuant to Section 513 of the Illinois Marriage and Dissolution of Marriage Act, support for a non-minor child with a disability pursuant to Section 513.5 of the Illinois Marriage and Dissolution of Marriage Act, disposition of property in a civil union, retroactive child support in parentage matters, or  attorney’s fees and costs against the other party, each party shall serve a completed  affidavit […]

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What To Do When A Spouse Empties Joint Bank Accounts In An Illinois Divorce?

In Illinois, if your spouse empties a joint bank account before or during a divorce, you can’t rely on automatic protections but you can file a motion for temporary relief or to maintain the financial status quo. Courts can order the funds restored or award you temporary support. Act quickly and consult an attorney to restore financial security to your household. Can A Spouse Legally Empty A Joint Bank Account Before Or During An Illinois Divorce? Before a divorce is filed, there is no mechanism to prevent anyone from emptying a bank account. The parties are only limited by the rules the bank set for the account. Unfortunately, after a divorce is filed there is no automatic mechanism in Illinois to prevent a spouse from emptying a bank account before or during an Illinois divorce. It may seem ridiculous that one spouse can go nuclear and deprive the other spouse of any money to spend, live on or even eat. Other states have something called an “automatic stay” that prevents bad behavior like emptying/closing bank accounts and failing to pay bills as a divorcing party had in the past. Illinois, however, does not automatically freeze divorcing parties’ financial lives so that both spouses can maintain their standard of living until further order of court. Illinois used to have this commonsense legislation but an Illinois Supreme Court case found the law to be unconstitutional. Messenger v. Edgar, 623 N.E.2d 310 (Ill. 1993) Because Illinois law allows for bad behavior, the victim of financial abuse such as emptying a bank account must act retroactively when the abuse happens in order to preserve their rights. Advising Your Spouse To Not Empty The Joint Bank Accounts In An Illinois Divorce At the beginning of a divorce, a strongly worded letter should go out to your spouse advising them that any failure to pay a current bill, closure of an account, or unnecessary withdrawals from any existing account will have serious penalties. The spouse should be warned that any financial shenanigans will be met with an emergency motion to maintain the status quo, a petition for attorney’s fees to pay the emergency motion and a dissipation of assets claim. Both spouses and/or their attorneys should convene to discuss what the “new normal” should be for the parties finances as the divorce proceeds. Undoing The Emptying Of A Joint Bank Account In An Illinois Divorce If […]

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Local County Court Rules In An Illinois Divorce Case

To effectively litigate an Illinois divorce court, you must know A LOT: Statutes, case law and the Illinois Supreme Court Rules at a minimum. In addition to these bodies of knowledge, every county court has its own local rules that must be followed. These local rules let local courts govern the way they handle their cases. “Subject to the rules of the Supreme Court, the circuit and Appellate Courts may make rules regulating their dockets, calendars, and business. 735 ILCS 5/1-104(b) “Local court rules are required to be procedural in nature and cannot modify or limit the substantive law.” In re LS, 203 NE 3d 325 – Ill: Appellate Court, 1st Dist., 4th Div. 2022 These local rules must be consistent with Illinois statutes and Illinois Supreme Court Rules. “A majority of the circuit judges in each circuit may adopt rules governing civil and criminal cases, including remote appearances, which are consistent with these rules and the statutes of the State, and which, so far as practicable, shall be uniform throughout the State.” Ill. Sup. Ct. R. 21(a) “Circuit courts possess inherent authority to enact and enforce rules regulating their calendars and dockets as long as those rules do not conflict with statutes or supreme court rules.” In re Marriage of Jackson, 631 NE 2d 848 – Ill: Appellate Court, 4th Dist. 1994 Rules have to be followed. That is why they are “rules”. “A local court rule has the force of a statute and is binding on the circuit court and parties.” In re LS, 203 NE 3d 325 – Ill: Appellate Court, 1st Dist., 4th Div. 2022 “Like supreme court rules, local court rules are meant to be followed, as written, and are not mere suggestions or guidelines from which deviations may be made by the litigants.” VC & M, LTD. v. Andrews, 991 NE 2d 323 – Ill: Supreme Court 2013 Despite the above citations requirement that local rules MUST be followed. Appellate courts recognize that because the local rules are created by the local court, reviewing courts shouldn’t get too upset if a local court decides to break its own rules. “A reviewing court will not interfere with the trial court’s exercise of its authority under the local rules in the absence of facts constituting an abuse of discretion” In re Marriage of Jackson, 631 NE 2d 848 – Ill: Appellate Court, 4th Dist. 1994 Because all […]

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Cars, Trucks and Motorcycles In An Illinois Divorce

An average person’s assets are usually relatively simple.  The average person may own a house, the average person might have a retirement account but the average person almost certainly owns some kind of automobile. So, what happens to a car, truck or motorcycle in an Illinois divorce? Is An Automobile Marital Property In An Illinois Divorce? If a car, truck or motorcycle was purchased prior to the marriage, that automobile will stay with the person who purchased the automobile after the couple divorces.  The date of purchase can be easily proven by a receipt, registration or car title. Any asset that gets purchased during a marriage is presumed to be marital property.  “Purchased during the marriage” means anytime during the marriage.  That period of time where purchased property becomes marital property includes the period after a couple has separated or filed for divorce.  The day the presumption of marital property stops is the day the divorce is finalized and the judgment of dissolution of marriage is filed with the domestic relations court. Marital property is divisible by Illinois divorce courts. But, how do you divide a car, truck or motorcycle in an Illinois divorce? In 95% of all cases, you don’t divide an automobile even if it’s marital property.  There are several reasons why dividing an automobile (the value of the automobile, really) never happens in an Illinois divorce. Automobiles and Secured Debt In An Illinois Divorce Most automobiles are paid for by financing. That is, when the automobile is purchased, the car buyer takes out a loan to pay for the car. This loan is secured by the car itself. So, if the car buyer does not pay the loan in a timely manner, the automobile financing company can pick up the car with a tow truck.  So, there is almost always a loan attached to an automobile.  The loan cannot be separated from the automobile until the loan is paid off. This creates some weird math.  The moment the car is driven off the car dealer’s lot, the car’s value drops…but the loan amount does not.  So, a car is perpetually owned at a value less than the car loan attached to that car. So, in a divorce, a car really has zero net value so long as there is a car loan attached to that car.  If the loan has been paid off, then the car may […]

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Can Police Enforce A Child Custody Order In Illinois?

When adults with children separate, those adults govern their parenting time and parental decision-making with court orders. These court orders tell each parent when they are to pick up their children and what they can do with the children when the parent has custody of the child. When one (or both) parents do not follow custody orders, the other parent has the right to enforce the custody orders. Typically, the court orders will be enforced in a domestic relations court. Outside of court, at pick-up time, the judge is not present. Can the police be called to enforce a child custody order? What Happens When You Call The Police To Enforce A Child Custody Order In Illinois? Either parent can call the police at any time. The police will eventually arrive and talk to each parent. The police will listen to each parent and try to mediate and diffuse the situation. The police will even read the court order (often a multiple page document) and opine and who is supposed to do what. What the police will hardly ever do is enforce the court order. What did you expect? For the police to draw their guns and force one parent to turn the child over to the other parent? If one parent simply takes the child into their home and closes the door, the police are not allowed to go into that house. The Fourth Amendment of the United States Constitution guarantees that “[t]he right of the people to be secure in their . . . houses . . . shall not be violated.” U.S. Const. amend. IV. “At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U. S. 505 at 511 “In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Payton v. New York, 445 U.S. 573 (1980) What is transferring a child to another parent if not a “seizure of a person?” The police are never going into a house to get a child…without a warrant. Getting A Warrant To Get A Child In Illinois Issuing a civil warrant is a rarely […]

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Pick-Ups And Drop-Offs Of Children In An Illinois Divorce

When you get divorced or split up and you have children, there are dozens of little things you have to arrange in order to co-parent effectively. Specifically, you will make a schedule of when your children will spend time with you and when your children will spend time with their other parent. Then, you will need to specifically outline how those children are to get to their respective parent’s homes. Making such a specific schedule for parenting time and transportation to the location that parenting time is supposed to occur is mandatory in Illinois. Arranging Pick-Ups And Drop-Offs By Agreement After An Illinois Divorce Usually, these details regarding transportation of children after a divorce are written in a parenting plan. A parenting plan is “a written agreement that allocates significant decision-making responsibilities, parenting time, or both.” 750 ILCS 5/600(f) “At a minimum, a parenting plan must set forth the following: provisions for the child’s living arrangements and for each parent’s parenting time, including either:(A) a schedule that designates in which parent’s home the minor child will reside on given days” 750 ILCS 5/602.10(f)(2) “[P]rovisions for the exercise of the right of first refusal, if so desired, that are consistent with the best interests of the minor child; provisions in the plan for the exercise of the right of first refusal must include:… iii) transportation requirements” 750 ILCS 5/602.10(f)(14)(iii) The best practice is for the parent beginning their parenting time to pick up the child from the other parent or from school. Otherwise, the parent ending their parenting time will be waiting on the other parent. Waiting for another parent to pick a child can result in the late parent forfeiting their parenting time if so agreed (this is not advisable as life happens and children will be disappointed). Being consistently late for pick-ups and drop-offs can result in a loss of parenting time for the chronically late parent. “[E]vidence favoring [one parent] as [a child’s] custodial parent [can include] the following: [the other parent] was sometimes late picking up the children for visitation” In re Marriage of Marsh, 799 NE 2d 1037 – Ill: Appellate Court, 4th Dist. 2003 Even better is when the parents can begin their parenting time and do their pick-ups from a school, daycare or activity. This limits contact between the parents and eliminates the waiting issue. If the parents cannot agree, the court will decide […]

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How To Modify An Order Of Protection In Illinois

Petitions for orders of protection can be heard with only one person’s testimony. Furthermore, the standard of proof to grant an order of protection can be absurdly low, as only “abuse” in almost any form, can be established by one person’s biased description.   When an order of protection is granted by an Illinois court, one party to an intimate relationship (often a marriage) is left out of the house and may even be barred from seeing their own children. At this moment, all may seem lost. The order of protection is entered, the judge’s mind is made up and the Respondent has been labelled an “abuser.” While there may be little to no chance of undoing an order of protection in its entirety, an order of protection can always be modified in order to allow a party back into their house, to see their children or even vacate the order of protection. “A court’s authority to dissolve or modify a previously entered injunctive order exists in a dissolution proceeding just as in other civil proceedings.” In re Marriage of Fischer, 228 Ill.App.3d 482, 488, 170 Ill. Dec. 168, 592 N.E.2d 604, 608 (1992) Modifying an order of protection in Illinois usually depends on what kind of order of protection is currently in place. “[T]he Domestic Violence Act…provides for the entry of (1) an emergency order of protection (2) a 30-day interim order of protection; and (3) a plenary order of protection” In re Marriage of Gordon, 599 NE 2d 1151 – Ill: Appellate Court, 1st Dist., 6th Div. 1992 Modifying An Emergency Or Interim Order Of Protection In Illinois Emergency and interim orders of protection are, by their nature, temporary until a full and final hearing can determine if a long-term, plenary, order of protection should issue. Because of this, it is almost as easy to petition to modify an emergency or interim order of protection as it is to issue an emergency or interim order of protection. “Upon 2 days’ notice to petitioner, in accordance with Section 211 of this Act, or such shorter notice as the court may prescribe, a respondent subject to an emergency or interim order of protection issued under this Act may appear and petition the court to re-hear the original or amended petition. Any petition to re-hear shall be verified and shall allege the following:(1) that respondent did not receive prior notice of the […]

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Who Has Custody Of A Child If There Is No Court Order In Illinois

When parents split up they must immediately make arrangements to keep the children’s lives and schedules as stable as possible. Maintaining a consistent schedule for the children is difficult in the opening phases of a divorce. Typically, one parent disappears from the home at the initial stages of the divorce and is absent from the children’s lives until further orders are made for temporary visitation and then final custody. What happens to visitation and custody at the beginning of a divorce or parentage action before any orders are entered? It first has to be determined whether the courts even consider the parents to have any rights over the child. Determining Who Is A Parent When There Is No Court Order In Illinois If the parties are not married, the father is not deemed to have any presumptive rights until a court has adjudicated him to be the parent. To adjudicate Is to “rule on judicially” Black’s Law Dictionary (11th ed. 2019). “An individual may not be adjudicated to be a parent unless the court has personal jurisdiction over the individual” 750 ILCS 46/603(b) The father will not be deemed a parent with rights until an order is issued by the court confirming they are the father. Until the unmarried father of a child declares himself the father via court order…he has no rights to that child. Declaring yourself the father is as simple as signing the Voluntary Acknowledgment of Paternity. “Voluntary acknowledgment. A parent-child relationship may be established voluntarily by the signing and witnessing of a voluntary acknowledgment” 750 ILCS 46/301 Mothers (due to biology) are automatically conferred rights to the child. “The parent-child relationship is established between a woman and a child by:(1) the woman having given birth to the child” 750 ILCS 46/201(a) Married parents are presumed to be the parent of the child even without a court order. “A person is presumed to be the parent of a child if:(1) the person and the mother of the child have entered into a marriage, civil union, or substantially similar legal relationship, and the child is born to the mother during the marriage, civil union, or substantially similar legal relationship” 750 ILCS 46/204(a) If the parties are married…nothing happens before an order is entered. If the parents are married, the court presumes both parents have their children’s best interests. The court won’t intercede regarding a married couple’s parenting time […]

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