standing in the way of leveling the playing field this is one of those cases what this case is not is a case where my client christe for mueller a lieutenant with the springfield police department who does not participate in so security is looking for any type of an advantage or extra benefit because he doesn't participate in social security but because he his wife does rather all he is seeking in this instance is a fair shake a level playing field so that the intent of the marital distribution loss concerning property in this state i it's a very important point because the touchstone of our system in distributing marital non marital property and dissolution of marriage proceedings in illinois set by the legislature is that it be fair and equitable marital property without regard to marital misconduct in just proportion considering all relevant factors in this case no one can seriously challenge the proposition that christopher is suffering a financial injustice in this case as shelly it's time she'll from all consideration all consider the fact that she is going to receive social security benefits because she works in the private sector while christopher has to put his entire policeman's pension including the part that takes the place of social security into the marital pot to be distributed in the case they act can just not be fair usually one more confronted with problems like this attorneys and judges we like a quick and easy resolution to what the issue is and say well we'll just make it fair unfortunately that's where the impediment comes in in this case if you practice marital law on a regular basis when you try to bring up the issue  social security in the trial court in pretty much any manner it's one of those issues where the child judge essentially gives you the hand you know i'll say judge i think we need to consider you know this party social security and you literally get stock we're not going to talk about that social security is not relevant and the law says i can't talk about that if you try to argue further sometimes you get the the point and say hey cut it out in that's what happened in this case we try to make a record on this point we had an expert witness mismatch is a mathematician a certified financial planner a divorce planner to testify about her calculations and the trial judge in the end just said you know what mr moran i am sorry we can't consider this factor you can't consider it at all in this case that the hand is up and it's not even a possibility to even the playing field and again that's what we're we're asking for if you look at sally's arguments that all she saying federal preemption under the supremacy clause article six clause to his ski area go decision of the supreme court are going to jump all over us that the supreme court or congress is going to say you've been approached on social security and we are not we're not going to stand for that the interesting thing is this court it's considered clearly this is an equitable it's not fair but we believe in fact krug which are different this way we believe we are  legal profession is we have a lot of the ingenuity and we don't take no for an answer they looked at that case where the supreme court looked pretty definite and said you know what there's got to be a way around this unfair situation spouses benefits were they were quantified they were considered and sad i don't remember the exact figure but let's say it's fifteen hundred dollars you're going to receive fifteen hundred dollars worth of benefits your any so what we're going to do is we're going to award more of the marital property to the non participates to take the place of those idea that valuing the nonparticipating he's houses and sion by offsetting what they would have received in social security the part that takes the place of social security and then awarding that pension and splitting it between the parties is the appropriate way to do it the line of cases went from ninety one in orange to then we went to the state of ohio walker in ninety six finally by two thousand the supreme court of arizona in cali did a very good job went into the details went into the constitutional law went into the treatise on this subject it goes to every fact it goes to the constitutional history it goes through the history of all the state court cases it talks about trucks from illinois and it  interesting thing is a lot of times when we're dealing with federal statutes that are not exactly clear and they're an accomplice looted in this case though or all seven and couldn't be any shorter more concise or clearer insolvency when you get right down to it if this methodology is another legal process then preemption does apply the supremacy clause does apply but in herald the supreme court of oregon decided that it did two important reasons the first is a sad day at the united states supreme court had considered section four zero seven eight after his coderre in two thousand and three in the case of washington state department of social and health services ursus a state of how they really limited what other legal processes are require you to slip utilization of some judicial or ways i did just a mechanism though not necessarily an elaborate one by which control over property passes from one person to another in order to discharge or secure discharge of an allegedly existing or anticipated liability this case they just said we're all seven eight doesn't apply in this circumstance we don't want to buy the participating spouses benefit from sources theory at all we don't talk about the number we don't talk about how many payments there are nothing the only fact that we consider is that the participating spouse is participating in social security the second point that was made posed to him earlier last year is in the state of oregon they had a similar search situation where when they considered this issue recently they had a prior decision that was somewhat on point w in the in the crook case and in swine it was in one thousand nine hundred six case in oregon now oregon supreme court essentially said no consideration the hand is is totally up so the two thousand and fourteen addressed swine right away in its decision and said you know what we want a little too far in that decision and they have to back off of swine and say it's only good l to its facts this court doesn't have to do that in this case because in crook after it decided the issue with sat there is this other line of cases out there the core and the walker cases but it said nobody has briefed your argue those so the court specifically said we're going to decide this question another day and so the question was left why open here in this state in conclusion the oregon court in harold really broke things down to kind of a common sense type of level it said justice few spouses who seriously plan for retirement would fail to consider their anticipated social security benefits in the absence of a manifestly contrary congressional intent court should not be expected to devise a just and proper award of retirement that is without considering among other pertinent factors the probable economic circumstances that each spouse will face when the vision of such benefits becomes operational failing to consider social security benefits that is reasonably expect receive in the foreseeable future can result in a misleading impression of that spouse's financial circumstances and in turn can produce and in equitable allocation of the parties financial resources we do not believe that congress intended for the prohibitive brass of the anti assignment provision of section for all seven a to reach so far so they found that it was appropriate to consider that the participating spouse was in fact in the social security system and that does not violate federal preemption or the supremacy clause after these two findings that this was an other legal process in that we could consider the participating spouses involved in social security or even court just adopted the exact same plan that we case because there was a very funny cost of living adjustment issue but our experts testify that in order to determine what the social security benefits were all she had to do is go to the social security administration website punch in a couple of numbers and it spits out or you what they have benefit is than that can be valued and it can be offset against the full value of the pension we this offset as you just described is a hypothetical one correct that the the expert went to the source through the website and said had he had the police officer to participate in so security this is what he would have got did so as a hypothetical number is there any other place in merrill distribution that we use hypothetical speculative numbers like that hypothetical it's not really the right word because which means no it's not broken out just by statute there's a percentage of his pay it's taken just like there's a percentage of your pay when you're in social security that the government takes and then the employer matches same system is set up with the pension and then there's a a lot a lot of that that you receive for being a police in his case in this instance i'm not aware of any other career you plug them into the social security website and it gives you the answers so it's based on actual facts are no speculation here it doesn't move there's no no discretion that has to be  the argument that since we can't use shelly's social security payments as an offset let's take what christopher would have been put into social security and reduce that from his pension and them come up with a number security benefits versus this computation that comes on but that's a bet that it it hasn't happened in this case and again that that speculation about other cases that that would be out there in this instance style nobody would argue that what's happening with christopher having to put that all one hundred percent on the marital table to be split while shelly can say you can't even consider that i'm going to receive social security that that is in any way fair no court has ever said yeah that's a totally fair this physician right but it appears to me that could happen i guess it's possible but th in and then we're left with the the dilemma worst fors an equitable distribution you would never take into account the one spouse of social security benefits but as a result of this formula the spouse worse off than if they had been a lot if the court had been allowed to look at the offset by the and i just have to go back to iraq case and say that that's not what happened here if you look at the decision shelly got two hundred forty six thousand dollars in liquid assets retirement accounts or a one ace she got fifty six thousand dollars worth of equity in a house she got seventeen thousand dollars for a new car and she got thirty five percent more than a third of my clients and shit on the other half my client got a two thousand dollar timeshare court has that that discretion because the statute says any other relevant factor five or three instead of being limited and what a child court consider is really expansive it allows it blackburn and i represent the actually in this case shelly mueller the issue in this case your honour's is whether it is permissible in law or equitable in application to allow the trial court to consider a hypothetical asset in this case a social security benefit when determining how to divide america list say ensure your honors it is neither permissible in law or equitable in application therefore we are asking that this court affirmed the trial court supreme court the only one that i'm aware of is of course the most recent one in herald where they applied for a search of the united states supreme court it was denied but of course it was denied without any comment so we have no idea why it was actually it said you can't directly consider cell security and you can't use it as the basis of an offset in that case the wife actually requested i did there are a portion of her husband's railroad pension benefits or an offset on the mayor from the marital estate to compensate for the benefits she was not going to be able to receive and the finding in that case the holding in that his cardio case is you can't do either you can't either you can't give her part of israel road retirement and that is plain likewise you cannot offset that so i don't know that there is an issue really for the federal court to address and maybe that's why the federal court denied cer herald and decided that it did not want to address it because it has already addressed that issue before you know we'll never know because like i said it was done without any sort of comment so we have no idea why they denied served your honour's in this case dissolution of marriage act is not permitted to value hypothetical assets rather the trial court is charged with placing a value on marital assets and marital debts and dividing equitably the value of the estate after considering that was things what mr mueller is asking this court to do is to add an additional layer for the trial court and that additional layer would be now we're going to add another factor and that factor is any hypothetical asset that is out there you need to put a value on it to in order to divide the marital estate that is essentially what is being requested here is me by mr mueller and with regard to the question concerning whether or not ms mueller would have been better off or would be better off if mr if her so security benefits were considered and then offset rather than mr mueller's the fact in this case is she absolutely would have been because mr mueller the evidence was mr mueller was the higher wage earner for the majority of these  parties marriage in fact i believe there were points during the marriage where mrs needler was not employed at all so the likelihood that personal security benefit is going to be smaller than mr mueller's hypothetical social security benefit i believe goes without question fact of the matter is though and in response to the justices question to mr moran even if you send this back to the trial court and ask the trial  instruct the trial court to make that a factor the federal law prohibits the trial court for making that a factor that simply can never be a factor that has squire who is a very very clear the social security act prohibits ms mueller social security benefits from being valued as a marital asset so that simply cannot be done in this case the bottom line on the state law so security is not an asset it is social insurance it is not an entitlement and this mueller may or may not ever receive the benefit of that at age sixty seven on the other hand mr mueller's benefit is without a doubt an asset of the the sole purpose of this request that's before the court today is to allow mr mueller to obtain the relief they fisi by entering through the back door when he has been denied entry already through the proverbial front door in his car to go so what he's saying is i want to do an end run around to scorpio and say i'm not really considering social security benefits what i'm really asking you to do doesn't have anything to do with the social security act and that's simply not true because the purpose of the social security act is to protect the economic security of the people who participate in it and ms mueller economic security will absolutely be diminished by allowing mr mueller to reduce her interest in his pension by considering what he would have paid in social security and that your hono in dividing of america let's say a square vo slice here because as i said federal interests are without a doubt involved that's invoking the supremacy clause because the proposed offset is going to penalize mueller who is the person that congress has sought to protect yes social security according to mr mueller's rationale he can avoid the effect of that because he's not asking the court to offset ms mueller so security benefit but rather asking you to pretend as though he paid into social security it's interesting to note in harold from the supreme court of oregon there was a very lengthy dissent in that case and that dissent was the basis of that dissent was what you've done supreme court of oregon violates this quarter yo and the herald dissent acknowledged that if a spouse cannot take social security benefits from the other spouse to compensate for the retention of the other person so security benefits it's difficult to understand how a spouse can withhold property for that very same reason th for greater than ten years so he is eligible through that route for social security he also has paid into social security although not through his primary employment but he has paid into social security from  side jobs if you will and of course because of the way the springfield pension plan is set up he is eligible for retirement at age fifty with full benefits so in theory he can go to work after age fifty at a full time job where he would pay into social security and therefore receive social security benefits at age sixty seven just like ms mueller would and the trial court before all of that information that you just talked about the trial court had before it the age of retirement age that he would reach retirement the trial court had before it the information concerning the information concerning his employment via social security but i'm not sure that the court really gave that any consideration because before the court got to that point it had already determined that it was not going to be addressing anything that it believed  crook and so i believe there was an offer of proof made after the fact and that may be dealt with that issue but i don't recall that specifically isn't it though anything after the divorce division would be only speculative and he may not be able to be eligible for any of those things based on other things and you know right it absolutely is speculative but to me it's no difference to for mr mueller to suggest to the court that we should value an asset that is not an asset any more than it is speculative that he may actually have assets that we're unaware but i do agree it's not the province of the trial court to assume what may happen in the future with people's employment or remarriage or whatever it is but it's no different then mr mueller's position that the trial court somehow has some sort of providence to put a value on an asset that simply doesn't exist and mr mueller's received the benefit of that because if so security happens not to be there at age sixty seven ms mueller receives nothing mr mueller on the other hand is getting a discount asking for a discount on his pension and if so security wasn't there at sixty seven it wouldn't matter to him because he because he's already received his benefit by getting a greater portion of this pension it's more  employment would also be posed a solution that is correct and therefore would be a miracle as the money that's correct no different than this isn't a marital asset i mean mr mueller hypothetical so security isn't an asset mueller's the actual social security not an asset so really the argument is no different except for one they asked for some sort of speculation in the future but none of them are asset runners this court acknowledged in croke the authority at this forty zero on these issues and when mr moran was arguing that the court asked whether or not there would have to be an overruling of crook in order to give mr moran the relief that his client is seeking and i absolutely believe that this court would have to overrule crook in order to do so because the holding in cook was that you cannot defy directly or give an offsetting award because both would upset the statutory balance and impair the economic security and the court went further to say that it was rejecting the analysis that had been done by other courts who had permitted trial judges to consider so security benefits as a factor because instructing the trial court to consider so security benefit either causes an actual difference in the distribution or it doesn't and if it does not then the consideration is without meaning and if it does and the monetary value of the so security benefits the spouse would have received is taken away from that spouse and given to the other spouse so i don't think that there's any question that this court because of its language in senate considering an offset making an offset something that cannot be considered would have to overrule crook if it were to didn't it did not address those it did not address those because they were not being argued that the only difference between horn blath and walker and kelly and the issue that's before this court is that the issue that was before the before this right and that was what was the four one left walker and kelly because i'm just saying how how can you  any sort of benefit or directly dividing the pension but we are giving an offset we're giving an offset because we're reducing the value of a pension in order to do sell so that's why i believe the appellate court believed her conclusion that was reached in kruk and frankly corn left walker and kelly don't apply any sort of common sense in their holdings basically left walker in cali all say we'll give you an offset for what you should have paid into social security and we're leaving it at that you get a dollar for dollar offset and you're your pension benefit gets reduced by that amount that approach does not serve the purpose of the illinois marriage dissolution of marriage act the purpose of the island i mean marriage and dissolution marriage act is to divide america list state equitably the proposed solution in this case is certainly not equitable because it reduces the value of the marital i do not believe that the springfield police pension has in its system says we're going to take x percent and put it into a pension fund this much is for social security or which are not going to  security and this much is your actual actual contribution i do not recall seeing that kind of provision anywhere and so let me ask you this lisa directly we have anything in the record in this case from the retirement plan documents that talk about how they calculate his pension i do not believe that there is anything in the record my understanding of springfield police engine plan is that it's actually  mandated so i don't believe there is an actual play n that is produced by springfield police pension because i believe i've tried to subpoena that before and i've been referred to the statutory authority instead let me ask you one other qu excluding the creditor stuff levies attachment and all that i mean that's for creditors but that doesn't allow this valuation of the equity of of of trying to balance things out what specifically in just the phrase other legal process well and in the cases that have decided what data are interpreted what that other legal process means and it's been interpreted to mean any judicial or quasar judicial  taking of another person's property in order to satisfy some sort of claim that one person is making against the other and that's what that's the portion of the statute that i also security act that i believe is violated by what mr mueller is suggesting be done in this case honestly third argument that mr mueller makes that is in my opinion unconscionable here is he argues that this his suggestion on what to do in this case would be both at what a ball and flexible you're honest there can be no nothing more equitable or more inflexible then what mr mueller  suggesting here he talks about a level playing field but where is the level playing field for ms mueller and people like ms mueller under mr mueller's proposed resolution mr mueller will retire full benefits at age fifty which is coming up in may of two thousand and seventeen ms mueller will retire hopefully with so security benefits at age sixty seven which will be may of two thousand or two thousand and thirty three seventeen years receive those until she's fifty nine and a half which again is going to be june of two thousand and twenty six your time has expired so i think you hear honor and you own rights that last question one of the first things i wrote down was we heard sally's entire argument and she didn't point to any place and for all seven a that was being violated if you look at that other legal process we cited to the herald court cited to the state of catholic case from two thousand and three where the supreme court of the united states again looked at for all seven a and sa that other legal process had to imitate one of the other creditors rights i have to say this kid there zero on this record and now i'm going to have to say some latin but the phrases adjust them generic us and that is if you have that lying a very specific remedies so in this case we we have execution plenty attachment and garnishment if that's followed by a general term the general term only applies to things that are very similar to the previously delineated terms therefore in this case there isn't a violation of oral seven a supremacy clause does not kick in battle creek mansion does not kick in what's the best evidence of that answer to another question this is in the herald case the first time we can discover anywhere that the federal authority has ever been tried to ban involved in relation to this methodology mr harold in oregon he was an twelfth of this year what does it mean well it's not race judicata if you look at the law of the united states supreme court if they deny certain one case it doesn't mean that they can't in the future grant cert on that same question but if you look at their rules to grant cert there has to be a compelling reason when it comes to a state court decision it states the state court has decided an important question a federal law that is not then what should be settled by this court a possibility here or has decided an important federal question in a way that conflicts with relevant decisions of this court has to be the argument of shelley on this record that this violates his skiff darrow that that question was laid right on the lap of the united states supreme court and they denied it sir i think it was justice hugo black said that what that means is that on the given day four of the nine justices that agree that we we need to hear this case so that argument that this preemption should apply supremacy clause should apply didn't even get to the point where four justices would say hey this is important enough for us to consider therefore we believe that's the best evidence that that's out there that preemption doesn't apply preemption is not an impediment in this case all the courts which is considered this including this court has said this is an equitable this situation does not end the way property should be distributed in our state krupp flatly says it and then it apologizes but sorry we think preemption applies in this way the way we've done it on this record it doesn't apply and that's what we would request this court on a couple of the other questions as far as the social security benefits are concerned in the back that mr mueller may receive some social security if you read our expert's report in her testimony she clearly calculated that into the numbers that she did she look at the fact that there was a ten year marriage she looked at the fact that some of the employment that mr mueller has had would qualify him for social security benefits and she hot off what that amount was it's not included in our figures in that and this pension that lieutenant mueller has is worth about nine hundred ninety one thousand dollars if you take the off sat that we're requesting for social security x three hundred seventy seven thousand dollars and that leaves a pension that has a present value of six hundred fourteen thousand dollars that is still left for the trial court to consider and distribute in this case that gives us a fair resolution it takes care of the problem and after all what our attorneys and judges are problem solvers people come to us with issues that are in some cases begging to be resolved that are truly not fair and we resolve them in this case there is no federal impediment preemption doesn't apply there is a fix that's readily available to this court from the plan that says pursuant to the statute we have determined that based on the employment so far during the marriage that they have a monthly benefit is four thousand and twenty seven dollars a provision which sets the percentage which i believe is nine point nine one percent of officer mueller's salary that's taken in paid in to the system as viruses pension is concerned it's also if you read the other decisions on the other states they all say that east tensions and it's pretty much like it's a given a black latter type deal where it's assumed that this is in lieu of so it's a security it's interesting when you look at it and we don't argue this has been months but actually police officers and state workers in illinois can if the government decided participate in the cells the security system apparently the federal government can issue waivers which would allow these workers to be covered by the system in this case the choice has been made not to accept that waiver for the policemen at least and to be covered in this instance so in this record i believe that's totality of how it's handled reka is really questions there's nothing in the record nothing definitive