Four things to think of in Divorce or dissolution

1.    Property division

2.    Alimony – look to see if property sufficient to avoid alimony

3.    Child custody – best interest of the child

4.    Child support – best interest of the child

A marriage is: a civil status or relationship created by two people as husband and wife

The relationship lasts: until death or dissolution

1. Actual Damages: no punitive or aggravated damages

2. One Year limit: Suit must be filed within one year after the cause of action accrued

3. Fraudulent representations: the wife turned out to be a man

Generally engagement rings - gifts made in contemplation of marriage at the time given may be recovered if the marriage does not take place

To not be in contemplation of marriage, then it must be:

1. Delivery - property is delivered by donor

2. Acceptance - donee accepts the property; AND

3. Gift - the donor intends to make the gift unconditional

Contracts made prior to marriage to deal with assets of the estate after marriage dissolution or death

Not enforceable if:

1. Not executed voluntarily

2. Unconscionable b/c: 1) no disclosure of assets; 2) no voluntary waiver of right to disclosure; 3) no actual or reason to have knowledge of assets not disclosed

Child support waiver is never valid in a pre-nup

1. Young - nonage - must be 18 or parent/court consent

2. Gays - sam-sex partners-can't marry; not recognized

3. Related - consanguinity; first cousins can't marry unless 50 years old or sterile

4. Incapacity - mental incapacity or lack of consent - inability to understand marriage; no drunk or drugs

5. Physical incapacity - inability to consumate marriage

6. Bigamy - prior marriage still in force, unless good faith belief prior spouse is dead, divorce took place, or prior marriage was invalid

1. Marriage License

a. No blood test required

b. 1 day waiting period once issued

c. Good for 60 days

2. Solemnization

a. Performed by authorized official

b. No proxy marriages in IL

IL does not recognize common law marriages

For out of state common law to be recognized:

1. Burden of proof on party claiming marriage

2. Cohabitation of both parties and consumated

3. Holding out as husband and wife

4. Expression of intent to marry with exchange of vows

5. Capacity - not underage, crazy, gay, related, bigamist

IL public policy frowns on common law marriage

- Must be brought within 90 days of finding defect

1. Void marriage

a. Bigamy, gay, related

2. Voidable marriage

a. Young, impotent, mental incapacity/no consent

3. Who may bring the action

a. Young - parent if before kid is 18

b. Impotence - either spouse

c. Incapacity, fraud, duress - either spouse

4. Fraud in the inducement that goes to sex or procreation (an essential marital purpose)

- This act is intended to discourage jurisdictional competition among state courts by deferring to the continuing jurisdiction of another state court despite the temporary presence of the child in a second state.

- It attempts to prevent child abductions that occur in order for the abducting parent to obtain a custody award.

- The Act provides that if one parent wrongfully takes a child from another state in violation of a custody decree, then the state to which the parent flees must decline jurisdiction.

- A state may take jurisdiction of a child welfare case if the child's home state declines jurisdiction or there is no "home state."

- The child and at least one parent must also have a significant connection to the state, and there must be significant evidence in the state

- A parent has an absolute legal duty to support his or her minor children

- Illinois has child support guidelines that are applied in each case unless the court finds it inappropriate based on the best interests of the child

- The court may deviate from the guidelines, and if it does it must consider the financial resources and needs of the child, the financial resources and needs of the custodial parent, and the financial resources and needs of the non-custodial parent.

- Transfers of real property between husband and wife are valid to the same extent as if they were unmarried

- When one spouse transfers property to the other without consideration, there is a rebuttable presumption that it is a gift

- If property is transferred from a third party to both spouses, default is a tenancy in common in IL

- Modern trend is to limit alimony and instead start with property division and only allow when property division is insufficient - Uniform Marriage and Divorce Act (UMDA)

- Alimony may be awarded if one spouse:

a. Lacks sufficient property to provide for reasonable needs

b. Is unable to support themselves through a job or is a custodian of a needy child, making it impossible or appropriate for the custodian to seek employment

c. Has become accustomed to a certain standard of living during the marriage

- Obligation ceases upon the death of either spouse

1. Adultery

2. Cruelty - extreme and repeated physical and mental cruelty

3. Impotence - inability to have sex

4. Intoxication or Excessive drug use - 2 years habitually

5. Felony conviction - or infamous crime

6. Attempt on life of other spouse - poison or malice

7. Desertion - or constructive desertion; not voluntary

8. STD - such as AIDS, HPV

- Community property is marital property and spouses own undivided one-half interests in community property

- A court first classifies all property as marital or non-marital

- Marital property generally includes all property acquired by either husband or wife, individually or jointly, during the marriage

- Non-marital property is that acquired by one spouse such as gift, legacy, or descent, even if acquired during the marriage

- When considering distribution of marital property, the court looks at several factors: (1) length of the marriage; (2) prenuptial agreements; (3) obligations and rights arising from any prior marriage; and (4) each party's contribution or dissipation to the marital property, including the contribution of a party as homemaker

- Marital: all property acquired by either spouse, individually or jointly, during the marriage, except for non-marital, even if acquired during the marriage

- Non-marital property: (1) acquired by gift (except between spouses), legacy, or descent; (2) acquired prior to marriage or in exchange for property acquired prior to the marriage; (3) excluded by valid agreement of the parties; (4) obtained by judgment awarded to a spouse from the other spouse; or (5) acquired after the final separation of the parties

- No fault divorces are allowed where there has been an irretrievable breakdown in the marital relationship, which is defined as estrangement due to marital difficulties with no reconciliation

- In Illinois, no-fault dissolution is granted upon showing:

(1)  Marriage has been irretrievably broken for 2 years - may be waived upon stipulation of both spouses

(2)  Reconciliation has failed

(3)  Future attempts at reconciliation are impractical and not in the best interest of the family

1. Pensions and Retirement - vested and non vested equitably divided

2. Professional Degress and License - not a proprety interest subject to equitable distribution

3. Professional Practice and Goodwill - depends on whether the goodwill is unique, personal to the spouse, attributable to other parts of the enterprise

4. Personal Injury Claims - not divided, workman's comp is divided

5. Lottery Winnings - marital property

6. Stock Options - marital property

- Means shared legal parentage of the child

- Each parent does not necessarily have the legal right to make decisions for the child

- Parents can apply for joint custody by presenting a "Joint Parenting Agreement" or the court can appoint it based on:

a. Ability of the parents to cooperate

b.

(1)  Under the Uniform Marriage & Divorce Act, determined by:

(a)  Adjustment to the home, school and community

(b)  Child’s wishes as to the custodian

(c)  Health of the child and all parties involved, physical and mental

(d)  Interaction of the child with the parents

(e)  Parent’s wishes as to custody

(f)   Physical violence or threat

(g)  Abuse

(h)  Relationship: close and continuing relationship maintained by the opposite parents and the child

EXAM TIP: Use the acronym A CHIP PAR to remember the factors above