DuPage County Divorce Lawyer Blog

A Quick Overview of the Law Regarding Dissipation in Illinois

Published on: July 26, 2015 | Kollias, P.C.

Section 503 of the Illinois Marriage and Dissolution of Marriage Act requires that a court divide the marital property in just proportions considering all relevant factors, including, among other things, the dissipation by each party of the marital property. Legally, a spouse dissipates (or wastes) marital assets when he or she:

uses marital property
for his or her own benefit
for a purpose unrelated to the marriage
while the marriage is undergoing an irreconcilable breakdown.

In order to prove dissipation, all four of the above elements must be shown. Dissipation can manifest itself in several ways, such as concealing assets, transferring them, selling them, spending money, or incurring debt without the other spouse’s knowledge or consent. For example, the Illinois Appellate Court has found dissipation in the following circumstances:

In the case of Marriage of Thomas, the husband dissipated marital property by causing the devaluation of a marital business through his inattention to the quality of service that the company was supplying its clients, his failure to solicit additional clients, and by stealing clients for his new business, even though he did not gain any personal benefit.
In Marriage of Gurda, the husband’s committed dissipation by taking marital funds and investing them in a company that became insolvent, without informing his wife. He sold marital property, settled a lawsuit and a workers’ compensation claim, and took out home equity loan secured by marital residence. The funds were subsequently lost as a result of the bad investment.
In Marriage of Aslaksen, the husband dissipated marital assets when he failed to make court-ordered mortgage payments, and as a result the marital home went into foreclosure.
In Marriage of Landfield, the husband removed $200,000 from common cash fund account.
In certain circumstances, one spouse’s use of marital funds for expenses following irretrievable breakdown of marriage may be shown to be so selfish and excessive as to constitute a dissipation of marital funds, which may be considered in dividing marital assets following dissolution. See Marriage of Blunda.
Transfer of property, even non-marital property, for inadequate consideration may constitute dissipation, and the court may enjoin attempted dissipation of assets. Wood v. Wood.
In Marriage of Charles, the husband dissipated marital assets by spending in excess of $116,000 on an extramarital relationship, liquidating investments, and failing to satisfy tax debt, thereby incurring over $26,000 interest and penalties.

Non-Marital Property Under Illinois Law: How It Can Affect Maintenance and Property Division

Published on: July 12, 2015 | Kollias, P.C.

In a divorce, the Court has the obligation to equitably divide the marital assets and debts, and determine whether maintenance would be appropriate. While non-marital property is not subject to being divided in a divorce, it may have a profound impact on the appropriate division of the marital assets and debts. It may also be considered in determining how much maintenance should be paid.

Therefore, the first question is what is “marital property?”

Section 503(a) of the Illinois Marriage and Dissolution of Marriage Act defines marital property as all property acquired by either spouse subsequent to the marriage, except the following, which is known as non-marital property:

property acquired by gift or inheritance;
property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift or inheritance;
property acquired after a judgment of legal separation;
property exclude by valid agreement of the parties (e.g., pursuant to a prenuptial agreement);
any judgment or property obtained by judgment awarded to a spouse from the other spouse;
property acquired before the marriage;
the increase in value of property acquired by a method listed in paragraphs (1) through (6), irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effect of a spouse, or otherwise, subject to the right of reimbursement provided in subsection (c) of this Section; and
income from property acquired by a method listed in paragraphs (1) through (7) of this subsection if the income is not attributable to the personal effort of a spouse.

The law is clear: both inheritance and property acquired before marriage are non-marital. This means that the party who owns the non-marital property will be keep it in the divorce, and the other party will have no claim to it. In cases where one spouse has a sizeable amount of non-marital property this may seem unfair, particularly in the case of a long-term marriage. Also, unlike property, a spouse’s non-marital income may be considered when determining the maintenance award to the other spouse.

Recording Private Conversations In Illinois

Published on: June 15, 2015 | Kollias, P.C.

It is no secret that emotions run high during a divorce or custody proceeding. Sometimes parties seek orders of protection from one another to prohibit acts of abuse or harassment from occurring.

Imagine this scenario: Chris and his girlfriend Rhianna are having an argument about who will have custody of their daughter after they split up. Chris gets really angry, punches Rhianna in the face, and smashes her face on the dashboard of his car. In turn, Rhianna files for an emergency petition for an order of protection against Chris.

In court, the judge orders Chris to stay away from Rhianna. Furthermore, he is prohibited from communicating with her, except regarding issues related to their daughter. A week later, Chris calls Rhianna and when she answers, she clicks the “record” button on her iPhone. Chris proceeds to tell her how sorry he is and how he just wants another chance. He says “I love you, I’m coming over right now to show you how much I love you and you better let me in, or else.” When she hangs up, Rhianna calls the police, plays the recording for them, and has Chris arrested for violating the order of protection.

Prior to March 2014, Rhianna would not have been able to use that recording to prove that Chris had violated the order of protection by harassing communication. The old version of the Illinois Eavesdropping Act provided that a person could be arrested for recording someone, private or public, without their knowledge or consent. The law was one of the most restrictive in the United States. The law not only restricted recording of private individuals but also public individuals and occurrences. As a result, under the old law, it was illegal to record, for example, public debates, protests, or interactions between the public and police officers.

Requests for Mental Health Examination in Illinois Child Custody Cases

Published on: May 4, 2015 | Kollias, P.C.

There is a certain irrationality inherent in contentious divorce and child custody cases. Many people going through such an experience might label their spouse as mentally unstable. If such mental instability is an actual psychological condition, as opposed to mere name calling, it can be particularly relevant when custody of minor children is in dispute.

When it comes to determining a person’s ability to parent minor children, a parent’s mental health may be under high scrutiny. Illinois Supreme Court Rules provide a mechanism through which a party to a divorce or child custody proceeding can call into question the opposing party’s mental health and request that he or she submit to an examination by a mental health professional.

Child Custody and Equitable Adoption in Illinois

Published on: April 6, 2015 | Kollias, P.C.

Adoption is one part of family law that doesn’t get much press, perhaps because it isn’t as contentious as the division of assets and debts in a divorce or as emotional as a hotly contested custody battle. Whatever the reason, adoption is typically an area of lightness amidst the often challenging aspects of other family law issues.

However, for an adoption to be legal and proper, parents must take necessary steps. An adoption petition must be filed, and the court must enter a judgment of adoption, terminating the biological parents’ rights and finding that the adoption is in the best interests of the child.

There is an exception to the rule, called “equitable adoption,” which typically arises in probate cases where there is a contested will. In the case of DeHart v. DeHart, the Supreme Court of Illinois was faced with determining when equitable adoption should be recognized in Illinois. The DeHart Court found that “equitable adoption theory should be recognized under the right circumstances even in the absence of a statutory adoption or a contract for adoption.” The Court further held that requirements for an equitable adoption claim are: (1) a plaintiff must prove intent to adopt; (2) a plaintiff must show that the decedent acted consistently regarding such intent in forming a “close and enduring familial relationship” with the plaintiff.

Can a Person File for Divorce on Behalf of Another in Illinois?

Published on: March 29, 2015 | Kollias, P.C.

Imagine this scenario: In 2004, your elderly father, Howard, decided to marry for a fourth time. He married a then-22 year old woman named Anna. In 2014, after ten years of marriage, Howard decides he has had enough of Anna’s hard-partying ways and files for divorce. He also thinks she may have married him just for his money. Despite being a billionaire, Howard decides to represent himself in the divorce. While the case is pending, Howard suffers from a debilitating brain aneurism that has affected his ability to speak, communicate, to get out of bed, and needless to say, to act as his own attorney or make decisions on his behalf. You are named as his power of attorney and decide to seek guardianship over him as a “disabled adult” to make decisions on his behalf. As his guardian, are you then able to continue with the divorce proceedings on his behalf? Can you obtain an attorney to represent you as the guardian taking the place of Howard? The answer is, at least ever since 2012, a clear “yes” and here’s why.

Before 2012, Illinois case law was clear that a third-party individual could not file for divorce on behalf of someone else in any circumstance, nor could that party continue divorce litigation for that person. In the 1986 case of Marriage of Drews, the Illinois Supreme Court held that a guardian did not have standing to file a divorce proceeding on behalf of the ward. In Drews, the husband was injured so severely that he was permanently mentally and physically disabled. After the accident, his mother was appointed as guardian of his estate and person. In that capacity, the mother filed for divorce on behalf of the husband. The Court held that absent specific statutory authorization, a guardian cannot institute an action for the dissolution of the ward’s marriage on behalf of the ward. It supported this conclusion by stating that the Probate Act, which did allow a guardian to represent the ward in legal proceedings, limited this ability to matters related only to the estate, rather than the ward’s person.

Are Employee Reimbursements Considered “Income” for Child Support Purposes in Illinois?

Published on: March 2, 2015 | Kollias, P.C.

Under Illinois law, are expenses reimbursed by an employer considered “income” for purposes of calculating child support?

For starters, Illinois requires a noncustodial parent to pay guideline child support based upon a percentage of his “net income.” Under the statute, “net income” means “the total of all income from all sources,” minus certain deductions defined by law. But, is money received as a reimbursement really income? From an employee’s perspective, it would seem odd to think so; because he is only being reimbursed for money he actually spent out of his own pocket. Thus, he isn’t really getting ahead financially on the deal. Rather, he is simply breaking even.

The Second District Appellate Court recently addressed this issue in the case of Marriage of Shores. In that case, the noncustodial father appealed the trial court’s award of an increase in child support order based upon his earned two reimbursement payments received through his employer, among other issues. In short, the appellate court held that the reimbursements that he received were considered income for child support calculation purposes. But why?

In Shores, the father received two fairly large relocation reimbursements from his employer, because his office was 60 mile from home. He obtained a second residence closer to the office. The employer paid his “duplicate housing expenses,” such as the mortgage, interest, and taxes for the home which was closer to the office.

Evidence of Prior Incidents of Violence, Abuse, or Harassment in Illinois Order of Protection Hearings

Published on: February 16, 2015 | Kollias, P.C.

Question: Can your prior acts of violence, abuse, or harassment be used against you in an order of protection hearing?
Answer: It depends on which side of the litigation you are on.

/post

Just kidding.

An order of protection is a civil remedy in which a person can ask a judge for protection from an abusive family member or significant other. Generally speaking, in order to obtain an order of protection, a person must show that he or she has been abused or harassed, and that such abuse or harassment is not likely to stop unless the court takes action. An order of protection can help to stop abuse and prohibit contact as well as make someone stay-away, attend counseling, pay child support, or vacate your home, among other things. If a person violates an order of protection, he or she can be arrested and charged with a crime.

Because orders of protection often entail allegations of violence, it is not unusual for each of the parties to want to talk about all of the bad things that the other person did in the past.

As an example, let’s assume that Britney files for an order of protection against Kevin. Britney is therefore the “petitioner,” and Kevin is the “respondent.” In her petition, she details five prior incidents over the last few months in which Kevin has physically abused her, sometimes in the presence of their two children. Moreover, Kevin has a history. Last year, Kevin’s ex-girlfriend filed a police report because Kevin broke into her house and punched her. However, she did not press charges.

Kevin would like to point out that Britney is not that innocent, either. About three years ago, Britney pled guilty to misdemeanor battery for slapping her then-boyfriend, Justin.

Termination of Maintenance Due to Cohabitation Under Illinois Law

Published on: January 25, 2015 | Kollias, P.C.

In Illinois, maintenance can be terminated if the party receiving maintenance “cohabits with another person on a resident, continuing conjugal basis.” What does that mean? The answer is not as straightforward as it might seem.

To illustrate the analysis, an example is helpful. Let’s assume Danny married Sandy in 2008. During their marriage, Danny has earned a decent income. Sandy is unemployed. Danny believes that Sandy has been unfaithful, and he wants a divorce. Sandy also wants a divorce, and asks Danny if he would help her financially so she could get her own apartment while the divorce is pending. Danny refuses to give her a dime. At first glance, Sandy would seem to be a strong candidate to receive maintenance.

Subsequently, Sandy moves out of the marital residence and into the home of her long-time friend, Johnny. Danny believes that Sandy may be having an affair with Johnny because he saw a picture of Johnny kissing her on the cheek on Facebook. He has always suspected that she had feelings for him. Sandy denies that she is in a romantic relationship with Johnny. Rather, she claims they are simply friends and roommates.

After about a month of living with Johnny, it is clear that Sandy spends a few nights each week with Johnny. She sleeps in her own, separate room. She does not pay anything toward Johnny’s household bills, and she does not have any joint accounts with him. Sandy has, however, gone on a weekend trip to Galena with Johnny, and has spent Thanksgiving with him. Under this set of facts, would Sandy be entitled to maintenance from Danny? Or would her right to receive maintenance be terminated due to her cohabitation with Johnny. Continue Reading ›

Under Illinois Law, Are Student Loan Payments Deductible When Calculating a Child Support Obligation?

Published on: December 22, 2014 | Kollias, P.C.

[UPDATE – The passage of the revised Illinois Marriage and Dissolution of Marriage Act renders the legal analysis in this post inapplicable to cases pending after January 1, 2016. The revised 750 ILCS 5/505(h) explicitly authorizes the courts to deduct student loan payments in calculating a child support obligor’s net income.]

Many parents today face the financial reality of paying child support. Many of those same parents also face the reality of repaying their own, sizeable, student loan debt. In Illinois, child support is set according to statutory guidelines, which set support based upon a percentage of the supporting parent’s net income. By law, is a noncustodial parent allowed to deduct student loan payments in calculating his or her net income for child support purposes?

The answer is maybe, sometimes. For child support purposes, the term “net income” is defined by statute. It is calculated by taking all of the supporting parent’s income from all sources and subtracting particularly specified deductions, such as taxes, union dues, health insurance premiums, and the like. The statute also allows for the deduction of:

“Expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income, medical expenditures necessary to preserve life or health, reasonable expenditures for the benefit of the child and the other parent, exclusive of gifts. The court shall reduce net income in determining the minimum amount of support to be ordered only for the period that such payments are due and shall enter an order containing provisions for its self-executing modification upon termination of such payment period.”

So, with the media declaring that America has a $1.2 trillion college debt “crisis,” will custodial parents soon face a corresponding reduction in child support crisis? Will a noncustodial parent who racked up massive student debt in obtaining a professional degree necessarily be able to deduct that student loan payment from his income when calculating his child support obligation? Not necessarily – but possibly some of it.