If Tom Cruise and Katie Holmes had not had an antenuptial agreement, how would they have approached property division? Every news article made a point of saying that Cruise was worth much, much more than Holmes. When she served him with the divorce papers, how could she have kept him or his accountants, business managers, agents, lawyers and other representatives from moving assets around to make it look as if he had less? How could she -- or anyone, for that matter -- have kept him from giving everything he owned to his son so he could honestly say he had nothing?
There is a legal tool that can help: a temporary restraining order or dissolution action stay. In some states, it's called an automatic temporary restraining order. In Illinois, it is not automatic; a party must ask the court for a TRO. Either way, in this state the order freezes the parties' marital assets while the divorce is pending.
Generally, the court issues the order with the divorce papers. If there are no special circumstances, the order is not in full effect until the non-serving party has had a chance to respond. But after that, neither party (nor any of their representatives) can transfer, conceal, encumber or dispose of any marital property other than what is needed in the usual course of business. The "course of business" includes day-to-day expenses, mortgage payments, utility bills and other costs associated with attempting to maintain a normal existence during the proceedings.
Originally, the statute covered both marital and non-marital assets, both marital and personal property. In 1993, the Illinois Supreme Court ruled the provisions for non-marital property unconstitutional, arguing that one spouse has no control over and no right to control the personal property of the other spouse.
We will continue this in our next post.
- Forbes, "Divorcing Women: Here's What You Need to Know About ATROs," Jeff Landers, July 11, 2012
- 16A Ill. Law and Prac. Divorce; Dissolution of Marriage § 159, via Westlaw
Our firm handles similar situations to the one discussed in this post. If you would like to learn more about our practice, please visit our Libertyville property division page.