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Pensions: dividing up pieces of the pie
Going through a divorce is tough. Dividing assets is even tougher. Being forced to give away half of your hard earned pension feels near impossible. But this is the reality that many divorcing police officers face, and it is important to know to what portion of your pension your future ex-spouse is entitled.
The first step in the arduous process of di- viding assets is for the court to determine what assets are considered marital proper-
ney who is experienced in asset division to ensure you get the maximum amount of your own retirement benefits.
Under Illinois law, “all pension benefits acquired by, or participated in, by either spouse after the marriage and before a judgment of dissolution of marriage, legal sepa- ration or declaration of invalidity of the marriage are pre- sumed to be marital property.” However, this presumption may be overcome by showing, through clear and convinc- ing evidence, that the pension benefits were acquired by a method listed in the preceding paragraphs, such as by gift
RACHEL JOHNSON
ty, i.e. property subject to division, and what assets are non-marital. Illinois defines marital property
as “all property, which includes debts and oth-
er financial obligations that have been acquired
by either spouse during the marriage,” 750 ILCS
5/503. Non-marital property comprises anything acquired before the marriage, including property acquired by gift, legacy or descent, or property ac- quired in exchange for such property, property acquired in exchange for property acquired before the marriage, property acquired by a spouse after a judgment of legal separation and property specifically excluded by a valid agreement of the parties, usually integrated in premarital or postnuptial agreements.
The statute explicitly states, however, that retirement plans may have both non-marital and marital character- istics. It is, therefore, vital to have a knowledgeable attor-
or legacy. Furthermore, the division of pension benefits is deemed to be an allocation of property “in which each spouse has a species of common ownership.” In the late 1990s, the Illinois Legislature amend- Family ed provisions of the Pension Code and the Illinois LAW Marriage and Dissolution of Marriage Act to pro- vide for Qualified Illinois Domestic Relations Or- ders (QILDROs), which gives divorce courts limited powers to effect distributions of public pension bene- fits to persons other than the regular payee. Therefore, a QILDRO for public government pensions, and Qualified Domestic Relations Orders (QDROs) for non-public pen- sions, must be completed by the parties before a non- member spouse can receive his or her portion of pension benefits. The drafting of a QILDRO or QDRO is extremely tedious and complicated, and should be completed by a
skilled attorney. d
60 CHICAGO LODGE 7 ■ MAY 2016