Divorce & Family Law Blog | Patrick Markey, P.C., Chicago, IL

Most people associate divorce with dividing property equally (50/50).  It is true that many cases do end up to a be a 50/50 division.  I believe that is the case because it is just the easist way to do it.   Here is an example:  A couple is married for 50 years.  One spouse (Spouse A) consistently earns 30-40% more in annual net income than the other spouse (Spouse B).  They do not have children and both worked during the marriage.  Both parties generally had home making duties of cleaning, shopping, making food, etc.  Spouse B did a little bit more of that than Spouse A. Section 503 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) states  one factor the court must consider in allocating property is “ the contribution of each party to the acquisition, preservation, or increase or decrease in value of the property”

Fast forward to the trial in this matter.  In theory, it looks like Spouse A should get better than 50% of the property because he acquired more of the marital property during the marriage.  Spouse B did do more housework, but she was not a stay at home person taking care of Spouse A.  How is the Judge going to figure this out?  They aren’t.  It is too complicated and there is no easy way to figure it out.

More wrenches

What if spouse B has saved all of her money during the marriage in 401(k) assets or other savings?  What if Spouse A spent all of his extra money on himself and had no money saved when the parties started the divorce.  Sure, some of Spouse A’s money was spent on Spouse B like dinning out or paying expenses.  However, over a 10 year marriage how would a party or a Judge quantify all of these variables.  It can be done, but it is difficult.  The court is probably going to just do an equal division of property.  Sometimes there is debt involved.  Can you invision Spouse A having a lot of debt in his name?  The court might stick Spouse A with his debt and give him less of the assets if Spouse B could prove with bank and credit card statements that Spouse B dissipated marital assets by not saving and spending it all on himself.

Property Acquired by a Spouse After the relationship has ended and parties have lived separate an apart.

There is no common law divorce in Illinois.  I have seen cases where parties have been separated for 10 years before filing for divorce.  In that time period one of both spouses acquire property and debt on their own.  A good argument can be made and is supported by Illinois case law, that the spouse who acquired property after the parties were no longer living as husband and wife should be awarded that property or a larger share of it.  The theory is that the other spouse did nothing to contribute to that acquisition of that property since the marriage was over and the parties were living separate lives in separate residences.

This argument does not work so well if the parties have been separated for less than 2 years (the statutory waiting period in Illinois).  However, it it has been more than 2 years (or even 10 years), the party who acquired property such as real estate, 401(k) or even lottery winnings should argue hard for the court to award that party a larger share of the assets acquired after the separation if not all of them.

One should not assume that the court will automatically do (50/50).  The term (50/50) or dividing property equally does not appear in Section 503 of the IMDMA which is the law on property division.  If you have facts which support an unequal division of property, you should make the argument to the court.

This is my first blog post in what I hope to be many more dedicated to marriage and divorce law.  As a full-time divorce attorney who does litigation, I receive many petitions and motions (also referred to as pleadings) in the mail and via fax from opposing parties and counsel.  The most common pleadings I receive are to set child support, maintenance, a child visitation schedule and or modify the above.  There are also petitions for interim and prospective attorney fees, to sell property like the marital residence, for exclusive possession of the residence, for a spouse to maintain a job diary, for a restraining order regarding property, for a physical or mental exam of children or parent, or to vacate, modify or reconsider a previously entered court among many more.

I, like many other attorneys, send a copy of the petition or motion to the client via email pdf or mail when I receive it from opposing counsel.   Sometimes within minutes or even seconds my phone is ringing or I am receiving an email from the client stating “Can they do that? or Why should they get (insert relief requested here)?”  First, the answer to “Can they do that?” is generally “Yes.”  I answered yes to that question because parties can generally file whatever motion they want as long as it is brought “in good faith,”  “warranted by existing law,” and “to the best of his or her knowledge formed after a reasonable inquiry as to the facts.”  This standard is fairly broad.  Do attorneys and litigants get sanctioned by the court for filing frivolous pleadings?  Yes, but it is not that common.

Second, “Why should they get_____?”  Who says they are getting it?  Many parties interpret a court motion or petition filed by the other side as a court order.  It is not.  It needs to be heard by the judge where the opposing party can respond in writing and orally to the judge as to why their spouse or other side should not recieve what they are asking for.  Judge’s do deny motions and petitions regularly.  Sometimes certain motions are never heard by the judge at all either because the attorney changed his or her mind due to a change in facts or strategy.  Sometimes pleadings get filed simply to get a rise or reaction from the other spouse.

A petition or motion asking for relief from a court is supposed to cite relevant statutes or law which entitles them to the relief they are asking.  The remainder of the pleading is supposed to state facts which support that parties’ position that the court should rule in their favor.  You should not necessarily need to be a lawyer to decide whether a petition or motion is bound to fail.  I always ask my client’s to read what is stated and then ask them what they would do if they were the judge deciding this case.  There are some cases, for example, a custodial or residential parent seeking child support, where it is fairly certain that that person is going to get what they are asking for (child support).  However, in petitions for maintenance or attorney’s fees, there is sometimes a “knee jerk” reaction from some attorneys if a one spouse earns more money than the other to seek this relief despite bad facts.  For example, the husband consistently earns $90,000 per year.  The wife consistently earns $75,000 per year.  In this example most of their assets are illiquid like home equity or retirement assets (pension/401k) and they both have no debt.  Every case is very fact specific, but does this look like a case where the Wife should receive maintenance or attorney fees from the husband? No.  Would that necessarily stop the Wife from filing a petition for both?  No.  Would she be sanctioned for filing it?  Probably not.

In conclusion, don’t freak out if you spouse files a motion for something.  It does not mean they will receive it.  If they objectively have good reasons for receiving it and the law is on their side, they might (or should) get it.   If they don’t have both the facts and law on their side, then usually they will not get what they want.