Dividing Pensions In An Illinois Divorce

Pensions are often one of the biggest assets in an Illinois divorce. Unlike cash or property, pensions cannot simply be split at the time of divorce. Instead, Illinois law provides several ways to divide a pension, most commonly through a Qualified Domestic Relations Order (QDRO), but also through present value or reserved jurisdiction approaches. Choosing the right option can significantly affect your financial future. A pension is “a regular series of payments made to a person (or the person’s representatives or beneficiaries) for past services” Black’s Law Dictionary (11th ed. 2019) Pensions make sense. While you worked you got a paycheck and lived off that paycheck. After you retire, you get a pension check to maintain yourself. The pension lasts as long as your life, thereby fulfilling your needs without guessing at how much you need to save. Pensions cannot be cashed out at the moment of a divorce because the future pensioner doesn’t have the right to the pension until the stated retirement date. How is a pension’s future stream of income divided in an Illinois divorce? Can Pensions Be Divided In An Illinois Divorce? Pensions can be divided in an Illinois divorce. Pensions are considered marital property if earned during the marriage. Illinois courts typically use a Qualified Domestic Relations Order (QDRO), but other methods such as the present value and reserved jurisdiction approaches may also apply. If any of the pension is earned during the marriage, the pension will be deemed marital property.“For purposes of distribution of property pursuant to this Section, all pension benefits (including pension benefits under the Illinois Pension Code, defined benefit plans, defined contribution plans and accounts, individual retirement accounts, and non-qualified plans) acquired by or participated in by either spouse after the marriage and before a judgment of dissolution of marriage or legal separation or declaration of invalidity of the marriage are presumed to be marital property.” 750 ILCS 5/503(b)(2) An Illinois divorce court “shall divide the marital property without regard to marital misconduct in just proportions.” 750 ILCS 5/503(d) “A spouse may overcome the presumption that these pension benefits are marital property by showing through clear and convincing evidence that the pension benefits were acquired by a method listed in subsection (a) of this Section.” 750 ILCS 5/503(b)(2) While pensions are marital and, thus, divisible, retirement plans are acknowledged to have a non-marital portion when partly earned before the marriage. “[P]roperty acquired […]

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Life Insurance and Divorce in Illinois

Life insurance is insurance against a person’s life that pays out money upon the death of the person. People typically purchase life insurance to support their family if they can no longer support their family due to death. What happens if you get divorced? You probably no longer want your spouse to benefit from your death. If you have children, you definitely want your children to be the beneficiaries of a life insurance policy. Does your spouse have to get that money to support the children? It all depends. If you already have life insurance an Illinois court has the power to decide who will be the beneficiaries of that policy. With respect to existing life insurance, provided the court is apprised through evidence, stipulation, or otherwise as to level of death benefits, premium, and other relevant data and makes findings relative thereto, the court may allocate death benefits, the right to assign death benefits, or the obligation for future premium payments between the parties as it deems just.” 750 ILCS 5/504(f)(1) In Illinois, life insurance benefits do not automatically get awarded to the ex-spouse upon the moment of divorce (this is different than most states).  You have to switch the beneficiary after the divorce. However, a divorce decree can state the parties’ intent to declare a new beneficiary which will apply even if the party never got around to switching beneficiaries before death.  Richard v. Martindale No. 09 CV 4159, slip op. (N.D. Ill. June 14, 2010).  The law requires that life insurance automatically drop an ex-spouse as a beneficiary after an Illinois divorce. This makes Illinois an “automatic revocation” state regarding life insurance. “If a judgment of dissolution of marriage is entered after an insured has designated the insured’s spouse as a beneficiary under a life insurance policy in force at the time of entry, the designation of the insured’s former spouse as beneficiary is not effective unless: (A) the judgment designates the insured’s former spouse as the beneficiary; (B) the insured redesignates the former spouse as the beneficiary after entry of the judgment; or (C) the former spouse is designated to receive the proceeds in trust for, on behalf of, or for the benefit of a child or a dependent of either former spouse.” 750 ILCS 5/503(b-5)(2) If you’re divorced and you have an existing life insurance with your ex-spouse as the beneficiary, the alternative beneficiary will […]

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Motion To Enforce Vs. Petition For Rule In An Illinois Divorce

In the course of an Illinois divorce, orders get entered. Those orders govern temporary issues designed to facilitate the entry of the final order, the Judgment for Dissolution of Marriage. The parties to a case are then governed by the words of the written order. If either party violates the order, the other party has the right to return to the divorce court to ask that the order be enforced and that the order violator be punished. “It is an elementary principle of law that a court is vested with the inherent power to enforce its orders. Where a domestic relations order has been entered, the trial court retains jurisdiction to enforce its order.” Smithberg v. the Illinois Municipal Retirement Fund, 192 Ill. 2d 291, 297-98 (Ill. 2000)(Citations Omitted) This power of a court to enforce its orders lasts forever! “[A] trial court retains indefinite jurisdiction to enforce the terms of a judgment.” In re Marriage of Hall, 404 Ill. App. 3d 160, 164 (2010) (citations omitted) There are two distinct and different ways to enforce an order in an Illinois divorce court: 1) via a motion to enforce and 2) via a petition for rule to show cause (and adjudication on indirect civil contempt). Which is the appropriate vehicle for enforcing your divorce order and ensuring future compliance? It depends on the nature of the violation and the relationship you have with your ex-spouse. Motion To Enforce In An Illinois Divorce A motion to enforce is the simplest way to request compliance with an Illinois divorce court order. “A judgment of dissolution or of legal separation or of declaration of invalidity of marriage may be enforced…by order of court pursuant to petition…Any judgment entered within this State may be enforced…in the judicial circuit wherein such judgment was entered or last modified by the filing of a petition with notice mailed to the respondent at his last known address, or by the issuance of summons to the respondent.” 750 ILCS 5/511 A motion to enforce simply asks for a second order that the party comply with the first order. There is no punishment. No attorney’s fees. No jail time. This begs the questions, if the order violator is not complying with the first order why would they comply with the second order? There are many reasons to prefer this seemingly toothless enforcement method in a post-judgment divorce. \A motion to […]

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Can You Avoid Paying Attorney’s Fees in an Illinois Divorce If You’re Broke?

Divorcing can be expensive, but what if you can’t afford to pay for attorney’s fees? In Illinois, divorce laws offer some relief if you truly cannot pay attorney’s fees. But, proving you’re ‘broke’ is only part of the challenge. An Illinois divorce court can award attorney’s fees from one party to the other party’s attorney under 750 ILCS 5/508(a) and 750 ILCS 5/501(c-1). These two statutes work in tandem. “The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order any party to pay a reasonable amount for his own or the other party’s costs and attorney’s fees. Interim attorney’s fees and costs may be awarded from the opposing party, in a pre-judgment dissolution proceeding in accordance with subsection (c-1) of Section 501” 750 ILCS 5/508(a)(emphasis mine) Even Guardian Ad Litems and Child Representatives can sue litigants for attorney’s fees. “The court shall enter an order as appropriate for costs, fees, and disbursements, including a retainer, when the attorney, guardian ad litem, or child’s representative is appointed… The provisions of Sections 501 and 508 of this Act shall apply to fees and costs for attorneys appointed under this Section.” 750 ILCS 5/506(b) While statutes set the groundwork for attorney fee awards, case law clarifies how courts apply these rules in real-life situations. When asking a court to award attorney’s fees from your spouse “[t]he party seeking an award of attorney fees must establish her inability to pay and the other spouse’s ability to do so.” In re Marriage of Schneider, 214 Ill. 2d 152, 174 (Ill. 2005) Sure, it’s easy to prove that you’re broke but it’s not as easy to prove that your ex is not broke too. Typically, courts conduct attorney fee hearings via summary hearing using nothing more than the parties’ financial affidavits. So, you are going to have to hope that your ex has claimed to have a large monthly surplus on their financial affidavit (this almost never happens). If both parties have no excess income beyond their expenses, Illinois divorce court will not order one allegedly broke litigant to pay another allegedly broke litigant. When a “trial court f[inds] that neither party ha[s] the ability to pay the reasonable attorney fees that had been charged. Accordingly, it [will] decline[] to assess fees against either party.” In re Marriage of Jaster, 583 NE 2d 659 – Ill: Appellate Court, 2nd […]

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Rebuttal Witnesses In An Illinois Divorce

Illinois divorces hearings and trials work in a very specific order. The petitioner or the person presenting the motion to be heard calls their witnesses and puts on their case first. The opponent can cross-examine the witnesses the petitioner or movant has presented but cannot introduce independent evidence in the middle of the other party’s case. Likewise, when the respondent to the Petition for Dissolution of Marriage or the motion to be heard puts on their case, the petitioner or movant cannot interject in the middle of their opponent’s case with independent evidence. Both parties must wait for a period called “rebuttal” after they’ve each finished presenting their case-in-chief. Parties typically say “reserve for rebuttal” to indicate they’ve finished presenting their case-in-chief instead of “I rest my case” because of this possibility. “Rebuttal” is an opportunity “given to a party to present contradictory evidence or arguments.” Black’s Law Dictionary (11th ed. 2019) Rebuttal evidence is not only a right, rebuttal is a way to have the last word in a divorce hearing or trial. So, rebuttal witnesses should be called if possible. When Can You Call A Rebuttal Witness In An Illinois Divorce? “`[W]here a [party] introduces evidence of an affirmative matter in defense or justification, the [other party], as a matter of right, is entitled to introduce evidence in rebuttal as to such affirmative matter.'” Flanagan v. Redondo, 231 Ill. App. 3d 956, 967, 172 Ill.Dec. 407, 595 N.E.2d 1077 (1991) (quoting Loftus v. Loftus, 134 Ill. App. 360, 362 (1907)) “Rebuttal evidence is evidence that tends to explain, repel, contradict, counteract, or disprove facts placed in evidence by an adverse party.” McCALEY v. Petrovic, 253 NE 3d 1010 – Ill: Appellate Court, 1st Dist., 1st Div. 2024 There are no surprise witnesses in an Illinois divorce hearing or trial. Rebuttal witnesses have to be disclosed in advance in an Illinois divorce hearing or trial (if an interrogatory asks for the witnesses or a case management order requires automatic disclosure).“All dates set for the disclosure of witnesses, including rebuttal witnesses, and the completion of discovery shall be chosen to ensure that discovery will be completed not later than 60 days before the date on which the trial court reasonably anticipates that trial will commence, unless otherwise agreed by the parties. This rule is to be liberally construed to do substantial justice between and among the parties.” Ill. Sup. Ct. R. 218(c)(emphasis mine) The committee comment to […]

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Who Gets The Engagement Ring In Illinois?

Traditionally, men ask women to marry them by buying them a diamond ring. The “rule” is that the diamond ring should be worth two months of the man’s salary. That is a lot of money. If the parties do not get married or get married and get divorced, who gets that engagement ring under Illinois law? Who Gets The Engagement Ring If The Parties Never Married? If the engagement was broken off before the actual marriage occurred, either party can go to an Illinois court with an action for replevin. Replevin is “a lawsuit to repossess personal property wrongfully taken or detained by the defendant” Black’s Law Dictionary (11th ed. 2019) “Whenever any goods or chattels have been wrongfully distrained, or otherwise wrongfully taken or are wrongfully detained, an action of replevin may be brought for the recovery of such goods or chattels, by the owner or person entitled to their possession.” 735 ILCS 5/19-101 Engagement rings are conditional gifts. “[A]n engagement ring is a gift conditional on the subsequent marriage of the parties” Vann v. Vehrs, 633 NE 2d 102 – Ill: Appellate Court, 2nd Dist. 1994 One party, literally, says “Will you marry me” and offers the ring as a gift in contemplation of the marriage. “The law in Illinois appears established that a gift given in contemplation of marriage is deemed to be conditional on the subsequent marriage of the parties, and the party who fails to perform on the condition of the gift has no right to property acquired under such pretenses.” Harris v. Davis, 139 Ill. App. 3d 1046, 1048 (Ill. App. Ct. 1986) (citations omitted) The next question is who removed the condition (marriage). Who broke off the engagement? “In a replevin action involving an engagement ring, the correct inquiry in deciding which party is entitled to possession of the ring is which party’s act conclusively ended the engagement.” Liceaga v. Baez, 126 NE 3d 682 – Ill: Appellate Court, 1st Dist., 4th Div. 2019 It does not matter what happened in the relationship. All that matters is WHO decided that the parties will no longer be getting married. “A court does not consider why an engagement ended, i.e. the underlying fault for the relationship’s breakdown, but only which party performed the act actually ending the engagement.” Liceaga v. Baez, 126 NE 3d 682 – Ill: Appellate Court, 1st Dist., 4th Div. 2019 If […]

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Compelling Discovery In An Illinois Divorce

The Illinois Supreme Court Rules provide a variety of tools by which each party to a lawsuit may request information from your spouse/ex-spouse or third parties who hold information relevant to the pending divorce case. These tools include notices to produce, subpoenas, interrogatories, requests to admit and financial affidavits. These requests can ask for virtually anything. “[A] party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action”  Ill. Sup. Ct. R. 201(b)(1) These various requests go out and almost all of them have to be answered or objected to within 28 days. Failure to comply in whole or in part is common in an Illinois divorce case. During a divorce, you will likely be your spouse’s least favorite person. Your spouse may destroy evidence, “forget” evidence, or simply refuse to communicate. How do you compel full and complete discovery in an Illinois divorce case? While this article focuses on the difficulties of getting complete discovery from a divorcing spouse, I have found in my years of practice that most people have little to hide. The average person has a W-2 job, a retirement account, a house and a car. These spouses turn over what little documentary evidence they have of these items without much fuss. “Discovery is intended as, and should be, a cooperative undertaking by counsel and the parties, conducted largely without court intervention, for the purpose of ascertaining the merits of the case and thus promoting either a fair settlement or a fair trial.” Williams v. A.E. Staley Manufacturing Co., 83 Ill. 2d 559, 566 (Ill. 1981) It is the people that have a variety of valuable assets that obfuscate, evade and refuse compliance with discovery requests. Therefore, it is almost always worth enforcing discovery requests because they are hiding evidence of assets for a reason…they do not want to share those marital assets and income. “For a party trying to obtain legitimate discovery, dealing with disruptive or manipulative conduct can be demoralizing and distracting, and, certainly, has the potential to increase expenses. Also, it often leads to increased tensions and a decay of civility between lawyers. Indeed, unless and until trial judges clamp down on discovery abuses-be it engaging in stonewalling, foot dragging, obfuscation, or any other shenanigans-little incentive exists for the already recalcitrant party to comply.” Locasto v. City of Chi., 6 N.E.3d 435, 440 (Ill. […]

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Defending A Petition For Attorney’s Fees In An Illinois Divorce

Divorce lawyers are expensive. What’s worse, you may have to pay for your spouse’s divorce lawyer via court order. You may be ordered to pay attorney’s fees if you are the spouse who controls the marital assets, is earning more or is just taking a principled stand that the court does not agree with. If your spouse’s attorneys do file a petition for attorney’s fees, there are ways you can mitigate the potential fees both in the short term and in the long term. There Are Different Types Of Petitions For Attorney’s Fees Your spouse’s petition for attorney’s fees should state which statute they are basing their petition for fees upon. An Illinois divorce court has broad discretion to award attorney’s fees under 750 ILCS 5/508(a) and 750 ILCS 5/501(c-1). Pre-judgment, these two statutes work in tandem. “The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order any party to pay a reasonable amount for his own or the other party’s costs and attorney’s fees. Interim attorney’s fees and costs may be awarded from the opposing party, in a pre-judgment dissolution proceeding in accordance with subsection (c-1) of Section 501” 750 ILCS 5/508(a)(emphasis mine) I emphasize the word “may” because these awards are completely discretionary. Divorce judges do not necessarily enjoy awarding interim fees because giving a divorce attorney money can be like giving an arsonist more gasoline. Money for attorney’s fees will inevitably be spent on litigation instead of being divided by the parties at the end of the case. If you see 750 ILCS 5/508(a) cited in a petition for attorney’s fees, they must proceed under 750 ILCS 5/501(c-1)’s rules. “Except for good cause shown, a proceeding for (or relating to) interim attorney’s fees and costs in a pre-judgment dissolution proceeding shall be nonevidentiary and summary in nature.” 750 ILCS 5/501(c-1) Nonevidentiary hearings are based on the written petition and an oral argument alone. There will be no testimony. So, to defend against a petition for attorney’s fees, you must attack the petition. A petition for attorney’s fees must explain certain facts and positions. “All hearings for or relating to interim attorney’s fees and costs under this subsection shall be scheduled expeditiously by the court. When a party files a petition for interim attorney’s fees and costs supported by one or more affidavits that delineate relevant […]

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