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9/23/93 Chi. Daily L. Bull. 1 

Chicago Daily Law Bulletin
Volume 139, No. 186
Copyright (c) 1993 by Law Bulletin Publishing Company

September 23, 1993 

David Bailey
Law Bulletin staff writer
An “excessively broad” state statute freezing marital assets during divorce proceedings could affect non‑marital property as well and is unconstitutional, the Illinois Supreme Court ruled Thursday.

The justices without dissent found that the Illinois Marriage and Dissolution Act’s provision restraining the parties in a divorce proceeding from transferring or disposing of property without a court order violates substantive due process.
 In affirming Cook County Circuit Judge Arthur L. Dunne’s ruling, the justices found that the provision “far exceeds providing notice of extraordinary expenditures or transactions.”

“In enacting section 501.1(a)(1), the legislature has sought to prevent the dissipation and concealment of marital assets once proceedings have begun to dissolve a marriage,” Justice Moses W. Harrison II wrote.

“In attempting to accomplish this purpose, however, the legislature has imposed upon parties to the dissolution of marriage a stay that restrains them from the disposition of not only marital assets but also property to which the other spouse can lay no claim upon the division of ‘marital property,’ ” Harrison wrote.

“By virtue of the excessively broad sweep of this section to include a restraint affecting property that cannot be considered in any way a marital asset, the means adopted by the legislature is not a rational means of accomplishing its purpose,” Harrison wrote.

The new provision took effect on Jan. 1, requiring a stay of all assets, marital and non‑marital, upon the service of a summons, petition or order under the act or on the filing of the respondent’s first appearance. Outside of reasonable costs, the stay enjoins the parties from expending assets until a final judgment is entered, the proceedings are dismissed or a court order is entered.

Plaintiff Carrie Messenger challenged the validity of the new provision shortly after it took effect on Jan. 1. Dunne heard arguments on an accelerated basis and ruled the provision unconstitutional in February.

The Illinois attorney general appealed and briefs supporting the provision were filed by the Illinois State Bar Association and the American Academy of Matrimonial Lawyers.

Chicago divorce attorney Paul L. Feinstein, who represented Messenger, said he would seek to overturn similar laws in California and Arizona on constitutional grounds.

David H. Hopkins, who prepared the amicus curiae brief for the ISBA, said he was “absolutely stunned” by the Supreme Court’s ruling.

“The dissolution action stay is one of the finest developments in divorce law and the product of about five or six years of work by the organized matrimonial bar,” said Hopkins of Schiller, DuCanto & Fleck.

Hopkins said that the Supreme Court ignored the statutory consequences of extraordinary transfers of money and that the dissolution act specifically provides that disposition of non‑marital property is taken into account when dividing a marital estate.

The stay provision was to expose the possible transfer of assets to allow the opposing party the opportunity to object under traditional injunction principles, Hopkins said.

“Both parties should be equipped with the same information, equality in terms of knowledge about what is going on,” Hopkins said.

Hopkins said the organized bar will try to fix the problems “the Supreme Court seems to believe exists” in the provision.
 “The goals are too important to be cast aside because of this ruling,” Hopkins said.

On appeal, the state contended that Messenger had no standing to file the challenge, nor did the provision deprive her of property without due process of law. The act merely acted as a notice provision, according to the defendants.

The justices found, however, that Messenger had sustained a direct injury to a legal interest that could be addressed by granting the relief she requested.

“Had the legislature wished merely to require that a party to an action for dissolution provide notice of an extraordinary expenditure or transaction, it could have achieved that end by omitting much of section 501.1(a)(1),” Harrison wrote.

The act’s provisions that restrain people from abusing their spouse or minor children and that prohibit either party from removing a minor child from Illinois or concealing the child from the other party were not challenged.

Assistant Attorney General Jennifer A. Keller represented the state in the Supreme Court case. Carrie Messenger v. Edgar, et al., No. 75132.
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