Anderson & Boback Logo

Division of Pensions After a Long Separation Period

Categorized as Property Division

In most situations, the Husband and Wife have lived together up until or very close to the date one of them files a Petition for Dissolution of Marriage. But what about those situations where the parties have been separated for 10 or 20 years prior to the filing of a Petition for Dissolution of Marriage?

Pursuant to section 503(a)(2) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), all property acquired during the marriage, including pension plans, is presumed to be marital. As such, all property acquired after the separation of the parties but prior to a dissolution of marriage is presumed to be marital. The implication of this classification is that the court would likely divide the marital property 50/50 or 60/40, including the assets acquired after the date of separation. With new changes in the law in 2016, however, the courts now have the discretion to value assets and property as of the date of trial, date agreed to by the parties, or such other date as the court determines. As a result, depending on the facts, the court could decide to value property up until the date of separation.

This flexibility assists the working spouse where there has been a substantial increase to the value of the marital property after the separation of the parties. The working spouse can argue pursuant to section 503(d)(1)(iii) that the non-working spouse did not contribute to the increase in the value of the marital property after the date of separation. Conversely, the non-working spouse can argue that the increase in value would not have occurred, but for her contributions during the time the parties lived together, continued child care, etc. For couples that have been physically separated 10, 20 years and have only recently filed a Petition for Dissolution of Marriage, this would make more sense. For those parties that have been separated but continue to either live together or continue to combine resources, the working spouse may have a more difficult time getting a judge to value property prior to the date of judgment.

There is little to no Illinois case law on this point and, with the new changes to the law, the courts have even more discretion to decide which valuation date they will choose. In the end, Illinois courts are to divide property “equitably”, which may or may not mean an equal division. The test in any situation should be “fairness”, and depending on which side of the equation you stand, the best argument would be that a certain valuation date or division of property would the most “fair” or “equitable” division in your case.

Was this information helpful?

You May Also Like

When a couple is considering a divorce, oftentimes there is a discussion about the house and who will live there during the divorce process.  Whether it is rented or purchased, some people decide that they would like to remain living…

Typically, you’d want to avoid a default when you are going through a divorce in Chicago because if not, then the way your marital estate is divided is out of your hands. Recently a client hired us to help her…

Spousal support is often a contentious issue in marriages that are substantial in length, where one spouse has outearned the other spouse.  Spousal support (formerly called alimony and often referred to as maintenance) is the payment of money from one…

There is a lot of disagreement about vaccinations for children and the argument between parents with differing views on this subject is not a new one.  Illinois family law attorneys representing parents in this type of disagreement have worked throughout…

There are many things that parents do when they are going through a separation from a partner or a divorce where a parent could lose custody - or impact their rights to make decisions for their minor children going forward,…

In my experience as a Chicago divorce attorney, when it comes to which spouse initiates a divorce in a marriage it is more often the wife.  Of course, there are plenty of husbands who file for divorce but in a…

Anderson & Boback small logo

Download our Divorce Planning Guide today!

Get the information you need to prepare for divorce with our free resource Guide to Planning for Your Divorce.

What our clients are saying

Why Choose

Schedule a Discreet Consultation Today!

    Firm Overview

    Anderson & Boback is a highly-respected, experienced Chicago family law firm, skilled in negotiation and litigation. When divorce and other family law issues make your life chaotic and uncertain, you want your case resolved as quickly and fairly as possible. Call Now 312-715-0870