Ex Parte Order Of Protection Hearings In Illinois

Orders of protection are for people in fear of another person…whom they were in a relationship with or shared a home with? Confronting someone you are both that close to and in fear of is overwhelming. Illinois law allows that the first time a victim of abuse is in court, the victim can testify without the alleged abuser there. The victim need not even notify the alleged abuser of their intent to secure an initial, emergency order of protection. This “petition by surprise” allows the petitioner immediate protection where notice might provide a final opportunity for the respondent to harass or abuse the petitioner before an order of protection is entered. Presenting anything in court without notice and without the respondent present is referred to as “ex parte.” What Does Ex Parte Mean? Ex parte means “Done or made at the instance and for the benefit of one party only, and without notice to, or argument by, anyone having an adverse interest” Black’s Law Dictionary (11th ed. 2019) “One of the most fundamental norms in our judicial system is that courts need to hear from both parties on a legal issue before granting any form of legal relief. Nevertheless, rules of civil procedure permit a vulnerable party to appear in court ex parte (without prior notice to the other party), to obtain a temporary order prohibiting a wrongful action about to be taken that will cause irreparable harm.” Debra Pogrund Stark & Jessica Choplin, Seeing the Wrecking Ball in Motion: Ex Parte Protection Orders and the Realities of Domestic Violence, 2017 U. Ill. L. Rev. ___ (2017) Parties seeking protection need to know that they can proceed to court without initial confrontation. Respondents to those petitions need to know what rights they have once the ex parte evidence has been offered. Getting An Ex Parte Hearing On A Petition For Order Of Protection In Illinois Ex parte hearings are granted in emergency petitions for orders of protection. “An emergency order of protection shall issue if petitioner satisfies the requirements of this subsection for one or more of the requested remedies. For each remedy requested, the petitioner shall establish that:         (1) The court has jurisdiction under Section 208;        (2) The requirements of Section 214 are satisfied; and        (3) There is good cause to grant the remedy, regardless of prior service of process or of notice upon the respondent.” 750 ILCS 60/217(a)(emphasis mine) The ex […]

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Waiver And Laches In An Illinois Divorce

Imagine your ex waits years before asking the court to enforce a provision in your divorce judgment. Can they still get relief? Two defenses often stop these late requests: waiver and laches. When someone doesn’t do something in an Illinois divorce matter, the other party can say “Sorry. You snooze, you lose. You should have asked for that months/years ago. We’re not dealing with it now.” There are two legal bases for denying some kind of relief that the other party has brought up at the proverbial last minute: Waiver and Laches. Waiver In An Illinois Divorce Case Waiver is a defense to a request for relief that explains to the court “this issue was waived previously by the words, actions or inactions of the person requesting relief.” “Waiver is an equitable principle invoked to further the interests of justice whenever a party initially relinquishes a known right or acts in such manner as to warrant an inference of such relinquishment.” Mollihan v. Stephany, 368 NE 2d 465 – Ill: Appellate Court, 1st Dist. 1977 “A waiver may be either expressed or implied, arising from acts, words, conduct, or knowledge of the insurer. An implied waiver arises when conduct of the person against whom waiver is asserted is inconsistent with any intention other than to waive it.” Home Ins. Co. v. Cincinnati Ins. Co., 821 NE 2d 269 – Ill: Supreme Court 2004 “Generally, to make out a case of implied waiver of a legal right there must be a clear, unequivocal, and decisive act of the party showing such a purpose.” Lehman v. IBP, Inc., 639 NE 2d 152 – Ill: Appellate Court, 3rd Dist. 1994 (Citations Omitted) “The burden of proof is upon the party claiming a waiver to prove the facts upon which he relies for such waiver.” Lehman v. IBP, Inc., 639 NE 2d 152 – Ill: Appellate Court, 3rd Dist. 1994 (Citations Omitted) “Proof of a voluntary and knowing waiver of a contract provision should not be assumed from mere inaction” Lehman v. IBP, Inc., 639 NE 2d 152 – Ill: Appellate Court, 3rd Dist. 1994 (Citations Omitted) An example of waiver would be a spouse failing to object for months when support was paid late. Making an issue of late support months later could be barred if a court determines they waived strict enforcement. Laches In An Illinois Divorce Case Laches looks like waiver […]

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Enforcing A Judgment In An Illinois Divorce

After an Illinois divorce is settled or a trial order is issued, the divorce is not over. Both parties must still comply with the terms of the Judgment for Dissolution of Marriage and the incorporated Marital Settlement Agreement and Allocation of Parenting Time and Parental Responsibilities. Illinois law provides multiple methods for enforcing those terms. All of these contracted agreements become incorporated into the judgment once the Judgment for Dissolution of Marriage is entered. At that time, the agreements are enforceable as judgments. “Under section 502(e) of the Illinois Marriage and Dissolution of Marriage Act (Act), settlement agreements are enforceable as terms of a judgment and by incorporation into a judgment they become part of the trial court’s order. By such incorporation, the agreement’s subservient nature as a contract gives way to the dominant character of the adjudication. Thus, the terms of the marital settlement agreement are enforceable as terms of the judgment.” In re Marriage of Sloane, 255 Ill. App. 3d 653, 656 (Ill. App. Ct. 1993) “Terms of the agreement set forth in the judgment are enforceable by all remedies available for enforcement of a judgment, including contempt, and are enforceable as contract terms.” 750 ILCS 5/504(e) Orders get enforced in the same court the order was issued. “Any judgment entered within this State may be enforced…in the judicial circuit wherein such judgment was entered” 750 ILCS 5/511(a) If someone has moved, the order will be enforced in the new, appropriate county or state. “If neither party continues to reside in the county wherein such judgment was entered or last modified, the court on the motion of either party or on its own motion may transfer a post-judgment proceeding…to another county or judicial circuit, as appropriate, where either party resides.”750 ILCS 5/511(a) But, filing a motion for enforcement is kind of silly because they are already not following the order. What are you going to do? Get another order which they will, in turn, also not follow? You need something extra. You need the power of contempt. Enforcing a Judgment Via Contempt To violate a court order is to insult the decency and power of the court which issued that order. Therefore, that court may hold the violator in contempt for said violation. Contempt can either be criminal or civil. Violation of a judgment for dissolution of marriage and its incorporated orders is invariably an issue of civil contempt. […]

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How Is Maintenance Calculated In Illinois?

In Illinois, maintenance (formerly known as alimony) is always one of three different numbers: To determine which of these three formulas will be applied in your Illinois divorce case and what number will, eventually, be arrived at as your maintenance payment, the below analysis must occur. Will There Even Be Maintenance In Your Illinois Divorce? For every divorce case in Illinois, the court must first find that ANY maintenance award is appropriate. “In a proceeding for dissolution of marriage, legal separation, declaration of invalidity of marriage, or dissolution of a civil union, a proceeding for maintenance following a legal separation…the 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. The 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, including marital property apportioned and non-marital property assigned to the party seeking maintenance as well as all financial obligations imposed on the parties as a result of the dissolution of marriage;(2) the needs of each party;(3) the realistic present and future earning capacity of each party;(4) any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage;(5) any impairment of the realistic present or future earning capacity of the party against whom maintenance is sought;(6) the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment;(6.1) the effect of any parental responsibility arrangements and its effect on a party’s ability to seek or maintain employment;(7) the standard of living established during the marriage;(8) the duration of the marriage;(9) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and the needs of each of the parties;(10) all sources of public and private income including, without limitation, disability and retirement income;(11) the tax consequences to each party ;(12) contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse;(13) any valid agreement of the parties; and(14) any other factor that the court […]

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Interest and Dividend Income In An Illinois Divorce

“If you don’t find a way to make money while you sleep, you will work until you die.” – Warren Buffett.  Lots of people have followed Warren Buffett’s advice by saving and investing so their money can earn them an independent income one day. These investments generate interest, dividends, and other kinds of income. However, even the wisest investor will have a personal life and, sometimes, that means divorce.  How is interest, dividend, and other income treated in an Illinois divorce? Asset Division In An Illinois Divorce Assets that generate income are divisible in a divorce if the assets are marital property. After the designation of an asset being “marital property” the Illinois divorce court “shall divide the marital property” 750 ILCS 5/503(d) Non-marital property is property that was acquired before the marriage or received as a gift or inheritance. Non-marital property stays with the spouse whose name the non-marital property is in. “[T]he court shall assign each spouse’s non-marital property to that spouse.” 750 ILCS 5/503(d) Dividing the assets is not the end of the story, however. If those assets generate some kind of income via rents, interest, dividends, etc., then that income must be factored into any maintenance or child support calculations. Income From Assets In An Illinois Divorce In determining maintenance (formerly known as alimony), the courts will consider “the income and property of each party” 750 ILCS 5/501(a)(1). Child support amount is similarly arrived at based on income in that child support in that the Illinois statute states its goal is “to allocate the amount of child support to be paid by each parent based upon a parent’s net income.” But what is “income” for the purposes of a divorce? Income is “[t]he money or other form of payment that one receives, usu[ally] periodically, from employment, business, investments, royalties, gifts and the like.” Black’s Law Dictionary 778 (8th ed. 2004) The Illinois child support statute agrees that income can come from a broad range of sources. “”[G]ross income” means the total of all income from all sources” 750 ILCS 5/505(a)(2)(A) The Illinois maintenance statute reads similarly and directs us back to the child support statute should there be any questions. “”gross income” means all income from all sources, within the scope of that phrase in [the child support section] of this Act” For the purposes of both child support and maintenance gross income is a factor […]

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Income Producing Assets And Maintenance In An Illinois Divorce

Warren Buffett once said, “If you don’t find a way to make money while you sleep, you will work until you die.” Many people have saved enough money, which subsequently makes enough money to maintain themselves…and then they get divorced. The money divided is often enough to live off as well (or at least pay for half of the divorced person’s expenses). Do income producing assets mean that no one has to pay maintenance (formerly known as alimony)? Or do income producing assets mean that there is now even more alimony to be paid from that income after an Illinois divorce? Is There So Much Assets Awarded That Neither Spouse Needs Maintenance? The assets awarded in an Illinois divorce absolutely affect whether an Illinois divorce court will award maintenance. Before even considering the amount of maintenance, an Illinois divorce court must consider whether the assets awarded to either spouse make a maintenance award appropriate. “In a proceeding for dissolution of marriage…the 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… The 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, including marital property apportioned and non-marital property assigned to the party seeking maintenance as well as all financial obligations imposed on the parties as a result of the dissolution of marriage.” 750 ILCS 5/504(a) If the assets awarded are so incredibly lucrative that the spouse’s needs will certainly be met, no maintenance need be awarded.If the assets awarded do not produce such clear and tremendous independent income, the court will award maintenance, either pursuant to guidelines (a mathematical formula) or deviating from guidelines (based on fairness). How Is Maintenance Calculated When Income From Assets Are Not Considered? “[I]f the court finds that a maintenance award is appropriate, the court shall order guideline maintenance” 750 ILCS 5/503(b-1) A “[m]aintenance award in accordance with guidelines.…shall be calculated by taking 33 1/3% of the payor’s net annual income minus 25% of the payee’s net annual income.” 750 ILCS 5/503(b-1)(1)(A) This maintenance guideline amount has a cap based on the maintenance receiver’s income relative to the maintenance payor’s income. “The amount calculated as […]

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Freezing Assets During an Illinois Divorce

When a divorce begins, there is a fundamental lack of trust between the two spouses. This lack of trust is especially strong when it comes to finances. There will always be suspicion that one spouse will try to hide or remove assets from the marriage. Because of this, parties will try to ask the court to freeze all of the marriage’s assets during the divorce until those assets can be appropriately allocated in the divorce process. “In a marriage dissolution proceeding, it is proper to prevent one spouse from secreting or disposing of marital assets” Erlich v. Lopin-Erlich, 553 NE 2d 21 – Ill: Appellate Court, 1st Dist. 1990 How do you freeze assets in an Illinois divorce? The Automatic Stay In many states, there is an “automatic stay” in the statutes that prevents parties to a divorce from doing anything to diminish or conceal any assets. In addition or in the alternative, other states also will allow judges to issue standing orders that are automatically issued at the beginning of a divorce case. Those standing orders can personally order the parties to a divorce to essentially freeze their assets until further order of court. There used to be a provision in the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/501.1), providing for the automatic restraint against transferring, encumbering or disposing of any property without bond the moment a divorce was filed until further order of court. This provision of the act automatically freezing assets in an Illinois divorce has since been removed after the provision was found to be unconstitutional by the Illinois Supreme Court. Messenger v. Edgar, 623 N.E.2d 310 (Ill. 1993) The court found that the provision was overly broad because there are almost always non-marital assets that would also be frozen under this Illinois statute. Furthermore, any legal restriction by the state or a court must require “due process” under the U.S. constitution and the Illinois constitution. Due process is the fair application of the law. The court held that automatically freezing someone’s assets without notice, hearing or even a signed affidavit by someone familiar with the facts is a direct violation of due process. So, there is no automatic freezing of assets in an Illinois divorce.  Chicago Divorce Lawyer Temporary Restraining Order or Preliminary Injunction Assets can eventually be frozen in an Illinois divorce, just not automatically.  A motion must be filed in […]

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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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How Does A Grandparent Get Custody Of Their Grandchildren In Illinois?

In Illinois, when parents are unable or unwilling to care for their children, grandparents often step in. But getting legal custody as a grandparent is not automatic, even if the child lives with you. In Illinois, grandparents can seek custody of their grandchildren under Illinois law but there are significant hurdles if a parent challenges grandparent custody. The courts in Illinois are happy to grant a good grandparent (or anyone really) custody of the child but only if the parents are not already exercising custody.  “A proceeding for allocation of parental responsibilities with respect to a child is commenced in the court:…by a person other than a parent, by filing a petition for allocation of parental responsibilities in the county in which the child is permanently resident or found, but only if he or she is not in the physical custody of one of his or her parents” 750 ILCS 5/601.2(b)(3) If the kids are living with a grandparent, but the parent is still in the children’s lives, the parent can object to the grandparent taking legal custody of the children. “When a noncustodial parent has not been found unfit, and has regularly exercised visitation and demonstrated interest in the child, it is proper that noncustodial parent have custody.” In re Marriage of Brownfield, 283 Ill. App. 3d 728, 733 (1996) The test of whether a parent can veto a grandparent’s attempt to establish custody hinges on whether the parent has “physical custody” of the child and when they had that “physical custody.” “Whether a child “is not in the physical custody of one of his parents” is not subject to a clear test. It is clear, however, that physical custody is not determined based on physical possession of the child at time the custody petition is filed. Physical possession of a child does not necessarily translate into physical custody of that child.” In re Custody of MCC, 892 NE 2d 1092 – Ill: Appellate Court, 1st Dist., 1st Div. 2008 A parent’s “physical custody” of a child is better identified as when physical custody does not exist: when a parent has voluntarily abandoned the child. “The determination that a parent does not have physical custody of a child turns not on possession; rather, it requires that that parent somehow has voluntarily and indefinitely relinquished custody of the child.” In re Petition of Kirchner, 164 Ill. 2d 468, 491 (1995), […]

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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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