How Does a Divorce Court Define “Fair”?
How does a divorce court define “fair?”
On January 29, 2003, the Illinois Appellate issued a decision in a divorce case upholding a trial court decision to award 84% of the assets to the wife, and 16% of the assets to the husband. How, under any circumstances, could this possibly be a “fair and equitable” division of marital assets? To illustrate this recent Illinois Appellate Court decision, assume that Jane was married to a nasty old man named Kenny for 38 years. Throughout the marriage, Jane had been a housewife and raised the parties’ three children. Kenny (whom we shall call “Mr. Nasty”) worked in a blue collar job throughout the marriage and provided all of the family financial support. After 38 years of marriage, Mr. Nasty and Jane called it quits. They owned a house valued at $83,000.00, Merrill Lynch accounts and a John Hancock Annuity valued at $226,000.00, and had miscellaneous items of personal property valued at approximately $100,000.00, for a total marital estate of $409,000.00 ($83,000.00 + $226,000.00 + $100.000.00). There were no substantial credit card bills.
In addition, Jane was receiving social security income in the amount of $6,000.00 annually, Mr. Nasty was receiving social security income in the amount of $12,000.00 annually, plus Mr. Nasty was receiving an additional $19,000.00 annually from his pension plan from his former employer. At the divorce trial, Mr. Nasty testified he might work part time as a real estate agent, and Jane would continue to remain unemployed.
In dividing up the marital estate, the trial court awarded Jane the marital residence worth $83,000.00 (with no mortgage balance), the Merrill Lynch and John Hancock accounts worth $226,000.00, plus $33,000.00 of the parties’ miscellaneous personal property, for a total of $342,000.00. Mr. Nasty was awarded $67,000.00 of miscellaneous personal property. Finally, Mr. Nasty was not required to pay any maintenance (formerly referred to as “alimony”) to his wife of 38 years. (Was this a “fair and equitable” division of marital property?) Well the Illinois Appellate Court, which typically has three justices who vote whether or not to uphold the trial court decision, voted 2 to 1 in favor of upholding the trial court decision. In accordance with Illinois law, the trial court was required to look at a series of factors in determining how best to divide marital property without assigning fault or blame to either party. In this case, the factors considered by the trial court included each party’s contribution to acquiring the marital assets, the value of property assigned to each party, the length of the marriage, the economic circumstances of each party, the age of each party, the future sources of income and vocational skills of each party, the reasonable opportunity for each spouse to acquire assets in the future, as well as the issue of whether maintenance (alimony) should be paid from husband to wife. The court’s rationale was as follows:
After the divorce, the husband’s social security and pension income each year would be $31,000.00, and the wife’s social security income each year would be $6,000.00. The trial court did not choose to award maintenance to the wife, because if her ex-husband died anytime soon, Jane would be without sufficient resources at the end of her life. By awarding Jane a debt free marital home, and awarding Jane $226,000.00 in stock and bonds, Jane would be able to support herself without any assistance from her ex-husband. Mr. Nasty on the other hand, would continue to receive $31,000.00 annually in social security and pension income for the remainder of his life, which would still be substantially more income than Jane would receive each year. The court also took note that Mr. Nasty maintained the possibility of working part time as a real estate sales agent. For these reasons, the distribution of marital assets was held “fair and equitable.”
In summarizing, Illinois trial courts have wide discretion in defining the words, “fair and equitable.” The Appellate Court concluded by stating that in deciding whether or not to reverse a trial court decision, “an abuse of discretion occurs only when no reasonable man could take the view adopted by the trial court.” The lone dissenting Appellate Court Justice held that the trial court did commit an abuse of discretion because the wife received nearly 500% more of the marital property than the husband. The moral of the story is, if you want to roll the dice, do it in Las Vegas rather than in divorce court.
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