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Six Property Division Factors in Illinois

If the marriage lasted longer than a few years, most couples have significant property and debt to divide during a divorce. In Illinois, the distribution must not constitute an unfair financial burden for either party. Note that marriage dissolution is almost always a financial burden, but neither the husband nor the wife should shoulder more than half of it, in most cases. To bring about an equitable distribution, a Chicago judge looks to a number of different factors. None is weighted more heavily than another one. Some of the more common ones include:

Agreements Between the Spouses

Illinois judges almost always uphold pre- and post-nuptial agreements that are not entirely one-sided and were signed voluntarily. In this context, an agreement is voluntary if there was no duress greater than a sign-or-else ultimatum and both parties had full access to all important financial data. As a rule of thumb, if each party had an attorney, the agreement is almost always voluntary.

Tax Consequences

For the rest of 2018, this factor will remain as of the most significant considerations in property division matters. On January 1, 2019, it may become largely irrelevant. The tax code rewrite eliminates the tax deduction for alimony payments and ends the requirement that they be reported as income. After the changes go into effect, judges still need to first decide whether an award of maintenance is even appropriate for divorcing spouses. There may still be some tax considerations, such as property taxes on a house, but these issues are normally not nearly as important.

Noneconomic Contributions to the Marriage

Some spouses give up chances to pursue income and property to assume caregiver responsibilities at home. Some go a step further. They give up some of their nonmarital property to support the other spouse through school, in starting a business, or in some other endeavor. So, in some cases, these contributions are huge. In other cases, however, this factor is largely irrelevant.

Dissipation (Waste or Concealment) of Assets

Sometimes, dissipation is a back door to bring martial fault into the property division discussion. If Husband spent thousands of dollars on gifts for a girlfriend, Wife is entitled to a fair proportion of that lost property. Or, if Husband’s lawyer had to hunt down property that Wife tried to conceal, Husband may be entitled to a disproportionate share to compensate for the additional attorneys’ fees. Dissipation claims have a five-year limitations period, and the party filing a claim must serve advance written notice on the other party.

Future Income Potential

This factor often weighs in favor of women. Statistically, divorced women have a much harder time rebuilding wealth than divorced men. If Wife has custody of a minor or disabled child, it is even harder to rebuild wealth. However, Wife usually only receives a disproportionate share based on future income potential in extreme cases.

Child Custody Provisions

If the custodial parent must place the children in daycare for an extended period of time, s/he may need additional financial resources. Those resources could come from the noncustodial parent in the form of higher alimony payments or a disproportionate share of marital property. Similar issues may arise if the custodial parent keeps the house and can only marginally afford it.

Some other factors include the length of the marriage, number of prior marriages (if any), and spousal support provisions.

Connect With Experienced Lawyers

Property division is a very subjective exercise in Illinois. For a confidential consultation with an experienced criminal defense attorney in Schaumburg, contact Glasgow & Olsson.

(image courtesy of Jessica Furtney)

Do You Have to Give Up Your Cell Phone Passcode?

The percentage of Americans who own a smartphone has doubled since 2011. That is an awful lot of change in a very short time. As we mentioned in a previous post, the law does not adapt very well to any kind of technological change. Thanks to the introduction of Cloud storage, most smartphones now have almost infinite storage capacities. Without that four-digit passcode, however, the device is just a piece of plastic instead of a treasure trove of evidence in a criminal case.

This background makes the title question very pressing. Most of the people reading these words own smartphones, and most of them know someone who is, or will be, a criminal defendant. There are almost no cases directly on point. So, how does Illinois law resolve this thorny issue? The answer largely depends on whether you use a Four or a Five.

Cell Phone Passcodes and the Fourth Amendment

This provision applies to searches and seizures. Police officers may not do either one without a warrant or probable cause. Perhaps more significantly, there is also the matter of what constitutes a “search” or “seizure” under the Fourth Amendment. The answer is not as straightforward as you may think.

The Supreme Court actually did rule on this issue recently, albeit in a different context, in 2016’s Birchfield v. North Dakota. In that case, the justices upheld refusal-to-submit laws. These state laws impose criminal penalties, in addition to drivers’ license restrictions, on persons who refuse to provide breath samples in DUI cases. The justices also ruled that authorities must have search warrants to perform blood tests.

So, is a Chicago cell phone passcode more like a breath test or more like a blood sample? Once again, it is difficult to tell.

Surrendering a passcode, much like blowing into a tube, is completely non-invasive. Furthermore, assuming that the passcode is unique, it cannot be used for any other purpose. In Birchfield, the Court noted that once the defendant blows into the Breathalyzer, the sample is destroyed.

Then again, a smartphone is incredibly private. The information it contains could be used in a myriad of ways by a myriad of people. By that reasoning, a passcode is more like a blood test. Arguably therefore, an officer needs a search warrant to compel a person to turn over a cell phone passcode. In fact, during the Supreme Court Case of Riley v. California, in 2014, the court decided that it is unconsitutional for the police to seize information from a cell phone without a warrant.

Cell Phone Passcodes and the Fifth Amendment

All the discussion above might be entirely irrelevant if a passcode is a Fifth Amendment testimonial issue. Persons have a right not to give incriminating testimony. That testimony can be non-verbal, such as O.J. Simpson trying on a pair of rubber gloves in open court or trying on a bloody shirt to see if it fits. Giving up a cell phone passcode sounds a lot like the gloves. If the person gives that information, the consequences could be far-reaching indeed.

Timing is an issue here, as well. The Fifth Amendment only kicks in when the Illinois prosecution reaches a “critical phase.” Courts have fairly consistently defined that point as the commencement of formal, legal actions. Even more significantly, courts have fairly consistently declined to extend Fifth Amendment protections to earlier stages, such as the aforementioned Breathalyzer test.

Go With Experienced Lawyers

The interplay between cell phones and search warrants is incredibly complex. For a confidential consultation with an experienced criminal defense attorney in Schaumburg, contact Glasgow & Olsson.

(image courtesy of Jay Wennington)

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725 ILCS 5/112A-11.5 Is found unconstitutional

Glasgow & Olsson was successful in having protective order statute declared unconstitutional because it violates due process rights by not allowing a hearing before substantive rights are taken away. Read Judge William Parkurst’s opinion here.

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