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Table of Contents
-
List of Forms by Chapter - Chapter 1 — Maintenance
- Chapter 2 — Premarital Agreements
- Chapter 3 — Postnuptial Agreements
- I. [3.1] Introduction
-
II. [3.2] Types of Postnuptial Agreements in Illinois - [3.3] Marital Settlement Agreements Pursuant to §502 of the IMDMA
- Classic Postnuptial Agreements Pursuant to §503 of the IMDMA
- [3.4] Statutory Basis
- [3.5] Caselaw
- [3.6] Substantive and Procedural Unconscionability
- [3.7] Abrogation of Agreement Due to Resumption of Cohabitation
- [3.8] Waivers of Maintenance and Support
- [3.9] Basic Requirements
- [3.10] Civil Unions
- [3.11] Drafting Tips
- [3.12] Amended Premarital Agreements Governed by the Illinois Uniform Premarital Agreement Act
- [3.13] Separation Agreements Incorporated into Judgments of Legal Separation
- [3.14] Separation Agreements Not Incorporated into Judgments of Legal Separation
- III. [3.15] Enforcing Postnuptial Agreements
- IV. Appendix — Sample Provisions
- [3.16] Requirement To Vacate Real Estate by Non-Titleholder Spouse
- [3.17] Waiver of Maintenance
- [3.18] Limited Maintenance and Support
- [3.19] Property Interests
- [3.20] Protection of Family Business Interests
- [3.21] Full and Fair Disclosure of Assets
- [3.22] Waiver of Rights in Qualified Employee Benefit Plans
- [3.23] Waiver or Modification of the Agreement
- [3.24] Dissipation of Spouse’s Gross Estate
- Chapter 4 — Property Considerations upon Dissolution and Declaration of Invalidity
- I. Basic Principles of Equitable Distribution
- II. Classification of Property
- [4.6] Marital Property
- [4.7] Nonmarital Property
- [4.8] Property Acquired by Gift, Legacy, or Descent
- [4.9] Property Acquired in Exchange for Certain Nonmarital Property
- [4.10] Property Acquired by a Spouse After Legal Separation
- [4.11] Property Excluded by Valid Agreement of the Parties
- [4.12] Any Judgment or Property Obtained by Judgment Awarded to a Spouse from the Other Spouse
- [4.13] Property Acquired Before the Marriage
- [4.14] The Increase in Value of Nonmarital Property Subject to the Right of Reimbursement
- [4.15] Income from Nonmarital Property if the Income Is Not Attributable to the Personal Effort of a Spouse
- [4.16] Transmutation of Nonmarital Property to Marital Property
- [4.17] Commingling of Nonmarital and Marital Property
- [4.18] Contribution and Reimbursement
- III. Classification and Treatment of Specific Types of Property
- [4.19] Marital Residence
- [4.20] Pension and Retirement Benefits
- Business Interests
- [4.21] Partnership Interests
- [4.22] Interests in Closely Held Corporations
- [4.23] Goodwill
- [4.24] Disability and Workers’ Compensation Benefits
- [4.25] Personal Injury Awards
- [4.26] Education
- [4.27] Insurance
- [4.28] Professional Fees
- [4.29] Stock Options
- [4.30] Income
- IV. Factors Considered in Proportional Division of Marital Assets
- [4.31] In General
- [4.32] Relationship Between Maintenance and Property Distributions
- [4.33] Pleading with Particularity
- [4.34] Necessity of Findings by the Court as to Value and Classification of Property as Marital or Nonmarital
- [4.35] Necessity for Court To Make Division of Marital Property
- [4.36] Wide Discretion of Court in Means of Achieving Equitable Division of Marital Property
- [4.37] Relationship Between IMDMA §503 and Sale of Property
- Criteria in Dividing Marital Property in Just Proportions
- [4.38] IMDMA §§503(d)(1) and 503(d)(2) — Contribution or Dissipation of Marital and Nonmarital Property
- [4.39] IMDMA §503(d)(3) — Value of the Property Set Apart to Each Spouse
- [4.40] IMDMA §503(d)(4) — Duration of the Marriage
- [4.41] IMDMA §503(d)(5) — Relevant Economic Circumstances of Each Spouse, Including Award of Family Home to Primary Residential Parent
- [4.42] IMDMA §503(d)(6) — Obligations and Rights Arising from a Prior Marriage
- [4.43] IMDMA §503(d)(7) — Prenuptial and Postnuptial Agreement
- [4.44] IMDMA §503(d)(8) — Age, Health, Income, Needs, etc., of Each of the Parties
- [4.45] IMDMA §503(d)(9) — Custodial Provisions for Any Children
- [4.46] IMDMA §503(d)(10) — Apportionment in Lieu of or in Addition to Maintenance
- [4.47] IMDMA §503(d)(11) — Reasonable Opportunity for Future Acquisition of Capital Assets and Income
- [4.48] IMDMA §503(d)(12) — Tax Consequences of the Property Division on Each Party
- [4.49] All Other Relevant Factors
- [4.50] Debts of the Parties
- [4.51] Factors Indicating That Periodic Payments Would Not Be Feasible
- [4.52] Awarding Income-Producing Property to Dependent Spouse
- [4.53] Other Factors
- [4.54] Bankruptcy
- [4.55] Trust To Protect and Promote Best Interests of Children
- [4.56] Attorneys’ Fees
- [4.57] Companion Animals
- [4.58] Embryos
- Chapter 5 — Bankruptcy
- I. [5.1] Introduction
- II. Conflicts Created by the Intersection of Bankruptcy and Divorce
- [5.2] Background — The Collision of Two Estates
- [5.3] Advising a Client in Light of the Bankruptcy Abuse Prevention and Consumer Protection Act
- [5.4] Ethical Considerations
- Advising the Debtor
- [5.5] Different Chapters of Bankruptcy
- Is the Debtor Eligible To File for Chapter 7?
- [5.6] Means Test in General
- [5.7] Median Income
- [5.8] Marital Adjustment
- [5.9] Monthly Expenses
- [5.10] Monthly Disposable Income
- [5.11] Abusive Filings
- [5.12] Impact of Hamilton v. Lanning
- [5.13] Documents Needed When Contemplating Bankruptcy
- [5.14] Limitations on Bankruptcy Filings
- [5.15] Debt Limitations for Chapter 13
- III. [5.16] Joint Case or Separate Cases
- IV. [5.17] Automatic Stay
- V. [5.18] Property of the Bankruptcy Estate — Property of the Marital Estate
- VI. [5.19] Trustee’s Claims Against Transferee of Marital Assets
- VII. [5.20] Bankruptcy Court’s Jurisdiction To Determine Property Rights
- VIII. [5.21] Attorneys’ Fees Charged to Debtor Spouse on Nondebtor Spouse’s Behalf
- IX. [5.22] Domestic Support Obligations
- X. [5.23] Real Estate Issues
- XI. [5.24] Conclusion
- Chapter 6 — Qualified Domestic Relations Orders and Other Considerations for Retirement Plan Assets upon Dissolution
- I. [6.1] Scope of Chapter
- II. [6.2] Historical Background
- III. American Bar Association Task Force
- IV. [6.7] Qualified Domestic Relations Orders
- V. Administrative Provisions
- VI. Qualified Domestic Relations Order Tax Treatment
- VII. Qualified Domestic Relations Order Practical Considerations
- [6.23] In General
- [6.24] Practitioner Due Diligence
- [6.25] Limitations
- [6.26] Current Distributions
- [6.27] Defined-Contribution Plans
- [6.28] Defined-Benefit Plans
- [6.29] Participant Loans
- [6.30] Alternate Payee Rights
- Postretirement Distributions
- [6.31] Form of Payment
- [6.32] Amendment or Termination of Plan
- [6.33] Illinois Treatment
- VIII. Use of Individual Retirement Accounts
- IX. Problem Areas
- X. [6.47] Conclusion
- XI. Appendix
- Chapter 7 — Marital Settlement Agreements
- I. [7.1] Scope of Chapter
- II. Statutory Provisions
- [7.2] IMDMA §502
- [7.3] IMDMA §502(a) Scope
- [7.4] IMDMA §502(b) Standards
- [7.5] IMDMA §502(c) Unconscionable Agreements
- [7.6] IMDMA §502(d) Incorporation by Reference
- [7.7] IMDMA §502(e) Enforcement of Agreements
- [7.8] IMDMA §502(f) Non-Modifiability
- [7.9] IMDMA §§510 and 505(g)
- [7.10] IMDMA §510(a) Retroactive Modification
- [7.11] IMDMA §510(b) Limit to Property Modification
- [7.12] IMDMA §510(c) Maintenance Terminating Events
- [7.13] IMDMA §510(d) Emancipation
- [7.14] IMDMA §510(e) Death of Parent
- [7.15] IMDMA §505(g) Termination of Child Support
- [7.16] IMDMA §513 College Educational Expenses
- [7.17] IMDMA §513.5 Support for a Nonminor Child with a Disability
- [7.18] IMDMA §§505(d) and 703 and 735 ILCS 5/12-101
- [7.19] IMDMA §505(d) Monthly Support Amount as Judgment
- [7.20] 735 ILCS 5/12-101 Extent of Lien
- IMDMA §505(a)(5)
- [7.21] IMDMA §505(a) Child Support Guidelines
- [7.22] IMDMA §505(a)(3) Net Income
- [7.23] IMDMA §505(a)(2) Deviation from Guidelines
- [7.24] IMDMA §§505(a)(3.6) and 505(a)(3.7) Additional Child-Related Expenses
- [7.25] IMDMA §505(a)(5) Percentage Orders
- III. [7.26] Allocation of Parental Responsibilities
- IV. [7.27] Other Considerations
- V. [7.28] Model Paragraphs for Use in a Marital Settlement Agreement
- [7.29] Introductory Paragraph
- [7.30] Preamble to the Agreement
- [7.31] Date and Place of Marriage
- [7.32] Separation of the Parties
- [7.33] Names and Birthdates of Children
- [7.34] Pendency of Litigation
- [7.35] Parties’ Intentions; Scope of the Agreement
- [7.36] Representation by Counsel
- [7.37] Income and Employment
- [7.38] Acknowledgment of Disclosure; Informed Consent
- [7.39] Acknowledgment of Consideration
- [7.40] Statement of Intention
- [7.41] Allocation Judgment and Parenting Plan
- [7.42] Allocation of Significant Decision-Making Responsibilities
- [7.43] Parenting Time Allocation
- [7.44] Holiday parenting schedule
- [7.45] School vacation parenting schedule
- [7.46] Holiday and special periods
- [7.47] Child’s activities
- [7.48] Transportation
- [7.49] Precedence
- [7.50] Telephone and E-Mail Communication
- [7.51] Child’s Records
- [7.52] General Rules of Parental Conduct
- [7.53] Dispute Resolution: Change of Circumstances and Periodic Review
- [7.54] Parents’ Addresses and Telephone Numbers
- [7.55] Parental Designation
- [7.56] Relocations
- [7.57] Modification
- [7.58] Child Support and Related Matters
- [7.59] Child Support
- [7.60] Duration of Payments
- [7.61] Emancipation Defined
- Medical and Dental Expenses
- [7.62] Respective Obligations
- [7.63] Duration of Obligations
- [7.64] Definitions for Purposes of This Agreement
- [7.65] Advance Notification
- [7.66] Resolution of Disputes
- [7.67] Health Insurance
- [7.68] Qualified Medical Child Support Order
- Life Insurance for the Child
- [7.69] Required Amount
- [7.70] Beneficiary Designation
- [7.71] Duration of Obligations
- [7.72] Methods of Effecting Reduction
- [7.73] Termination Event Defined
- [7.74] Future Borrowings
- [7.75] Proof of Coverage and Future Premium Payments
- [7.76] Satisfaction of Claims
- Educational Expenses
- [7.77] Respective Obligations
- [7.78] Educational Expenses Defined
- [7.79] Duration of Obligations
- [7.80] Joint Decisions
- [7.81] Conditions Precedent
- [7.82] IRS §529 Accounts
- [7.83] Dependency Exemptions
- [7.84] Sole Entitlement
- [7.85] Conditional Entitlement
- [7.86] Future Modification
- [7.87] Child with a Disability/Special-Needs Trust
- [7.88] Maintenance
- [7.89] Monthly Payments
- [7.90] Until Sale of Residence or a Date Certain
- [7.91] From Sale of Residence Until a Date Certain
- [7.92] For a Fixed Period of Time
- [7.93] Termination of Payments
- [7.94] Non-Modifiability of Payments
- [7.95] Tax Credit for Temporary Support Payments
- [7.96] Manual Waiver and Bar
- [7.97] Life Insurance To Secure Maintenance
- [7.98] Required Amount
- [7.99] Beneficiary Designation
- [7.100] Duration of Obligations
- [7.101] Future Borrowings
- [7.102] Proof of Coverage and Premium Payments
- [7.103] Health Insurance for the Party with No or Less Comprehensive Insurance
- [7.104] Real Estate
- Marital Residence
- [7.105] Description; Ownership
- [7.106] Condition of Title
- [7.107] Listing for Sale; Right of Occupancy
- [7.108] Sale Transaction; Allocation of Proceeds
- [7.109] Balloon Mortgage Note
- [7.110] Future Obligations
- [7.111] Allocation of Tax Deductions and Transfer Taxes
- [7.112] Taxation of Sale Proceeds
- [7.113] Mutual Intent
- Second Residence
- [7.114] Description; Ownership
- [7.115] Waiver of Interest; Conveyance
- [7.116] Future Obligations; Tax Deductions
- [7.117] Mutual Intent
- [7.118] Employee Retirement Income Security Act Benefits
- [7.119] Profit-Sharing or 401(k) Plan
- [7.120] Allocation
- [7.121] To the Alternate Payee Spouse
- [7.122] To the Participant Spouse
- [7.123] Participant Spouse’s Representations
- [7.124] Loan from Profit-Sharing or 401(k) Plan
- [7.125] Entry of Qualified Domestic-Relations Order
- [7.126] Mutual Intent
- [7.127] Pension Plan
- [7.128] Allocation
- [7.129] To the Alternate Payee Spouse
- [7.130] To the Participant Spouse
- [7.131] Entry of Qualified Domestic-Relations Order
- [7.132] Mutual Intent
- [7.133] Survivor Benefits
- [7.134] Annuity; Equal Sharing of Future Rights
- [7.135] Other Property
- [7.136] Stock Options
- [7.137] Cash Payments
- [7.138] Spouse A’s Personal Property
- [7.139] Spouse B’s Personal Property
- [7.140] Debts and Liabilities
- [7.141] Each Party’s Obligations
- [7.142] Respective Obligations
- [7.143] Income Tax Returns
- [7.144] Each Party’s Representations
- [7.145] Payment of Taxes
- [7.146] Deficiency Assessments
- [7.147] Election To Contest Assessment
- [7.148] Election To Amend
- [7.149] Indemnification
- [7.150] Refunds
- [7.151] Attorneys’ Fees and Costs
- [7.152] Each Party’s Obligations
- [7.153] Respective Obligations
- [7.154] Contribution Hearing
- [7.155] Breach of Agreement
- [7.156] General Provisions
- [7.157] Religious Divorce or Annulment
- [7.158] Execution of Necessary Documents
- [7.159] Mutual Releases
- [7.160] Waiver of Estate Claims
- Construction of Agreement
- [7.161] Recitals
- [7.162] Pronouns
- [7.163] Oral Amendments
- [7.164] Modifications
- [7.165] Other Agreements
- [7.166] Governing Law
- [7.167] Effective Date
- [7.168] Privacy Rights
- [7.169] Applicability of Internal Revenue Code §1041
- [7.170] Signatures
- Chapter 8 — Tax Aspects of Dissolution and Separation
- I. Essential Internal Revenue Code and Related References
- II. Alimony, Child Support, and Dependency Exemption Provisions of the Domestic Relations Tax System
- [8.7] In General
- [8.8] Key Parameters of Former Internal Revenue Code §71
- [8.9] Basic Term
- [8.10] Cash Requirement
- [8.11] Governing Instrument Requirement
- [8.12] Designation Rule
- [8.13] Different Households Rule
- [8.14] Terminability upon Death Rule
- [8.15] Maintenance Provisions After the Enactment of the Tax Cuts and Jobs Act of 2017
- [8.16] Child Support Provisions
- [8.17] Recapture Rule
- Certain Subjective Pre-1985 Rules
- [8.18] Support Test
- [8.19] Periodicity Rule
- [8.20] Netting Principle
- Key State Law Parameters for Planning Purposes
- [8.21] “Ride-Throughs”
- [8.22] Non-Modifiability
- Planning
- [8.23] “In Lieu of Property” Payments
- [8.24] Insurance and Terminable upon Death Rule
- [8.25] Uses of Designation Rule
- [8.26] Working with the “Anti-Lester” Rule for Instruments Executed Prior to January 1, 2019, Only
- Working with the Recapture Rule
- [8.27] Preventing Recapture
- [8.28] Exceptions to Recapture Rule
- [8.29] Shifting Burden of Recapture
- [8.30] Reinstatement Alimony
- [8.31] Dependency Exemptions Under the Domestic Relations Tax System
- Child-Related Tax Credits
- [8.32] Child Tax Credit
- [8.33] Child Tax Credit for Other Dependents
- [8.34] Child and Dependent Care Credit
- [8.35] Expansion of Use of 529 Savings Plan
- [8.36] Changes to Kiddie Tax
- Prototype Clauses
- [8.37] Clause for Installment Payments on a Monthly Basis, Payable for Three Years — No Non-Modifiability Provision
- [8.38] Clause for Payments Less than $15,000 per Annum, Payable as a Set Sum on a Monthly Basis for Less than Three Years, Continuing Until Certain Stated Events
- [8.39] Basic Non-Modifiability Clause
- [8.40] Clause Combining a Three-Year Arrangement with a Partial Non-Modifiability Provision Intended To Keep the Parties Within the $15,000 Safe Harbor
- [8.41] Clause for Monthly Payments on a Permanent Basis, with a Delayed Reduction Due to the One Spouse’s Remarriage and with a Non-Modifiability Clause
- [8.42] Basic Designation Clause
- [8.43] Clause for Monthly Payments for a Ten-Year Period, Subject to Annual Inflation Adjustments, with a Partial Ride-Through of Remarriage, a Designation Clause, and a Non-Modifiability Provision
- [8.44] Clause for Payments Computed as a Percentage of One Spouse’s Compensation
- [8.45] Clause for Payments Computed as a Percentage of One Spouse’s Compensation, Subject to a Floor
- [8.46] Clause for “Lesterized” Payments, with Reductions Scheduled but Not Tied to Emancipation Events
- [8.47] Tax Intent/Benefit Clause
- [8.48] Clause for Release of Dependency Exemption to Noncustodial Spouse
- [8.49] Clause for Allocation of Dependency Exemption to a Noncustodial Spouse on a Year-by-Year Basis
- III. Property Settlements and Transfers Under the Domestic Relations Tax System
- Key Parameters of Internal Revenue Code §§1041 and 2516 and the Retirement Equity Act
- [8.50] Nonrecognition Rule
- [8.51] Basis and Holding Period Rules
- [8.52] Scope of Nonrecognition Rule in Terms of Time
- [8.53] Scope of Nonrecognition Rule in Terms of Types of Transactions
- [8.54] Depreciation and Investment Credit Recapture
- [8.55] Third-Party Transfers
- [8.56] Gift and Estate Tax Ramifications
- [8.57] Qualified Domestic Relations Orders
- [8.58] Failure To Meet Mechanical Rules for Transfers of Individual Retirement Accounts
- Planning
- [8.59] Basis Considerations
- [8.60] Recapture Points
- [8.61] “Sharing” Concept (with Clauses for an Interest in a Tax Shelter and for Interests in Stock Options and Restricted Stock)
- [8.62] Annuities and Life Insurance Policies
- [8.63] Gift and Estate Tax Planning
- [8.64] Property Division Adjustments Due to Problems with Previously Filed Tax Returns
- [8.65] Tax Planning Rules in Connection with the Family Home
- [8.66] Internal Revenue Code §1041 and the Demise of Davis
- [8.67] Impact of the Imputed Interest and Original Issue Discount Rules
- [8.68] Educational Tax Incentives Created by the Taxpayer Relief Act of 1997
- [8.69] American Opportunity Tax Credit
- [8.70] Lifetime Learning Credit
- [8.71] Qualified Tuition and Related Expenses for the American Opportunity Tax Credit and Lifetime Learning Credit
- [8.72] Coverdell Education Savings Accounts
- [8.73] Penalty-Free Withdrawals from Individual Retirement Accounts for Higher Education Expenses
- Pre-Tax Reform Act of 1984 Property Transfer Principles in the Income Tax Area
- [8.74] Davis Rules
- [8.75] Division of Coowned Property Rules
- IV. Tools To “Straighten Out” Tax Problems Stemming from Marital Settlement Agreements and/or Premarital and/or Postnuptial Agreements
- V. [8.82] Conclusion
- Chapter 9 — Unique Employee Benefits: Stock Options, Employee Stock Ownership Plans, Etc.
Authors
Family Law: Property and Financial Aspects of Dissolution Actions 2023 Edition (COMING SOON)
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