QUESTIONS OF THE WEEK - January 16, 2008

Jerry, Chicago IL:

My wife and I lived in California. My wife, with her money, bought our house there. We sold the house, moved to Illinois and bought a new house here in Illinois. I say that our new house is half mine and half hers, because the money to buy it was community property. She says that the house is non-marital and it is all hers. Who is right?

The Lawyer of Love:

Are you my long lost civil procedure teacher from law school posing as Jerry? This sounds like a law school exam question! Actually, the LOL needs more information to give a complete and accurate response. I am assuming you want to get divorced and you have purchased a house jointly in Illinois. In this scenario, both of you are incorrect. There is a presumption that the Illinois residence is marital property since it was purchased during the marriage and title is jointly held. The presumption may, however, be rebutted by your wife if she has a good lawyer and she can demonstrate certain factors necessary to rebut the presumption. If, however, it is deemed to be marital property, it is not necessarily divided in half but rather one party may receive a disproportionate amount (such as 55 percent or more) depending on other factors in the case. For example, if your wife has the intelligence level of a gnat and has been unemployed for quite some time, depending on other facts in the case she may receive more than 50 percent of the marital property.

John, Glen Ellyn IL:

My wife took off to Texas in August (worst part is she took my dog)! For months she has lied to me that she is coming back. The van she has is in my name and I have been making payments on it. Also, she had me send her money for other expenses -- and of course for gas -- so she could come back! This sucker wants to know, does Texas have a six-month period that maybe she has been trying to reach so she can file there? Should I quickly file in Illinois? What, if anything, should I do about the van?

The Lawyer of Love:

John, let's focus on the most important things. You need to get rid of this worthless bitch and get your dog back. She is not coming back to you and you need to protect yourself now.

With respect to your wife filing for a divorce in Texas, if you have never been to Texas, which it sounds like you have not, then your wife will not have what is known as personal jurisdiction over you. This means that you do not have contacts with the state of Texas and it would be unfair and not foreseeable for you to have to litigate there. This does not mean that she cannot get a divorce there, but only that the Texas court cannot decide any issues relating to support, property, your dog and custody. Since you have not given me information about how long your wife has resided in Texas and whether you have any contacts with Texas, you must contact a Texas lawyer to determine whether your wife can in fact file for divorce there. If she has not done so, get off your ass right now and file for a divorce in Illinois. This will give you home court advantage and numerous other benefits which may even appear better than sex right now.

Gerardo, Chicago IL:

I am dating someone who is separated from her husband for about 10 months and wants to get a divorce but can't afford it. So, just a few days ago, she said she is going to begin that process, but is afraid that her husband will not sign any documents to get a divorce. Can he do that? She wants to move on with her life and we would like to be happy without him saying to me that she is still his wife. What can she do?

The Lawyer of Love:

Life is short, so tell her to contact a divorce lawyer and determine if she meets the criteria to file for a divorce. In Illinois, she can file for divorce under the "no fault" provisions but she must have a two-year separation period from her husband or a six-month separation period if both parties agree to the divorce. The separation period includes the uninterrupted period of time where both spouses did not have sexual relations but lived in the same household. So if she was banging her husband within the last two years (or even since she left 10 months ago), the separation period commences after she got laid by Hubby.

If your girlfriend does not meet the "no fault" criteria, she must have grounds for divorce against her husband. Grounds in Illinois may include adultery (by Hubby, not your princess), mental cruelty, physical abuse, etc. If she pleads grounds, then she does not necessarily need the separation period to file for "no fault" divorce.

After she meets the above criteria, if Hubby will not agree to sign a settlement agreement, then the case will go to trial. At trial, Hubby can waste thousands of dollars seeking retribution. This will undoubtedly backfire and will render him a penniless scorned asshole (rather than just any ordinary asshole).

Joshua, Oak Park, IL:

I think my wife is cheating on me. Should I hire a private investigator to follow her?

The Lawyer of Love:

If you are a voyeur, go ahead and hire the P.I. to take photos. If not, only you and your divorce lawyer can make the determination as to whether a private investigator will assist in your case. A private investigator can assist in cases where your wife is neglecting the children in favor of her lover and you are seeking custody. A private investigator may also assist in other scenarios such as finding hidden assets, dissipation of funds on a paramour and other situations too numerous to list here. If you want to confirm your suspicions, the reason she lost 50 pounds and is suddenly dressing like a slut, then by all means, hire the P.I.