Gitlin Law Firm 2008 Illinois Divorce and Paternity Case and ...

have the burden of showing that an exemption is inapplicable. Therefore, the
respondent and third-party defendant cannot claim that the IRA is exempt from
judgment. Second, even if the respondent and third-party defendant could assert an
exemption, such an exemption would be overcome by a statutory exception to
income exemptions for the collection of child support. Under section 12--1006 of
the Code, a debtor's interest in or right to the assets in a retirement plan, such as an
IRA, is exempt from judgment. 735 ILCS 5/12--1006(a), (b)(3). However, section
15(d) of the Income Withholding for Support Act provides an exception to this
income exemption from judgment for the collection of child support... income
includes any payment from annuity, pension, and retirement benefits and that
"[a]ny other State or local laws which limit or exempt income or the amount or
percentage of income that can be withheld shall not apply."
The next issue was whether the trial court erred when it denied the petitioner's motion for turnover
of the IRA under §2--1402(c)(3) of the Code. The appellate court ruled:
The petitioner argues that Gonzalez does not apply to this case and that the IRA is
the respondent and third-party defendant's marital property, subject to turnover to
the extent of the respondent's interest. We agree... The respondent has an actual
interest in the IRA in the third-party defendant's name as it is the respondent and
third-party defendant's marital property. In this case, the evidence shows that the
IRA was held in the name of the third-party defendant. The third-party defendant
did not present evidence or argue that the IRA was nonmarital property because it
was acquired before her marriage to the respondent or for any other reason. In fact,
the third-party defendant did not appear to have much knowledge about this IRA
account. Accordingly, we find that the IRA is marital property of the respondent
and third-party defendant. Moreover, because the IRA is marital property and the
respondent has a legal interest in it, we find that the IRA is subject to turnover to
the extent of the respondent's interest.
Comment by GJG: See also: ISBA article regarding this article.
For a further comment on this case, please see: http://www.catlaw.net/Takata.htm
She writes: “Takata v Hafley is a landmark case because pursuant to Takata v Hafley deadbeats in
Illinois can no longer hide their income or assets in a new spouse's name and thereby evade child
support enforcement.”
I ex-wife's version of facts from her web-site:
“1) Ex husband (FH) has worked for unreported income as a carpenter for most of his adult life.
(2) Since his re-marriage FH has repeatedly concealed his income and assets in his new spouse's
name (LH) to evade child support enforcement, and his testimony has repeatedly been found to be
not credible.
(3) October 2003: ex Wife (CAT) enrolls child support case in Peoria County, Illinois.
The Gitlin Law Firm, P.C. Page 24 of 55 www.gitlinlawfirm.com