three nearly thirty years case law has consistently held that in a bifurcated dissolution of marriage proceeding the date for evaluation of marital and non mare marital property is the date of the dissolution of the marriage legislature drafted are made effective the section five zero three f of the illinois marriage and dissolution of marriage act and that is seven dividing property shall value the property as of the date of trial or some other date as close to the deed of trial as possible in this case that bar the trial court and the fourth district has issued a ruling following their interpretation of that statute and rather than the common law that holds that data valuation is the date of dissolution and this is a result that actually in the valuation date in our particular particular case is being moved three different times because the case has been so prolonged in our case that the marital property which needs to be divided consists generally speaking of a couple of businesses some real estate and some liquid assets that are being held by one party or another the trial for grants this case was brought in the year two thousand the trial for grounds for dissolution was held in march of two thousand and one the trial and ancillary issues started in april two thousand and four and that was before a judgment of grounds was entered but that trial was a delayed yes and allows the court may enter dissolution and then reserve issue yes correct that's correct so it does not speak of these two different judgments two different court uses and i guess that we use a shipping county and what i mean is the hearing that is the justification for the dissolution of the marriage itself and that's what i mean when i use the term ground  so that hearing was actually in march of two thousand and one but the judgment of dissolution of marriage wasn't until august of two thousand and four during the trial and ancillary issues actually my client's expert testified on the value of this businesses and west in his testimony was over before there have been these continuous delays so since that time for various reasons the valuation date for the property has been because we have requested a date so that we can ask our experts to give us their opinion of value has been changed to two january first two thousand and six at one point and more recently december thirty one two thousand and ten that was before that the  effective january first it's our position that the date of dissolution is the correct the the valuation of marital property in a now the rule that numerous appellate courts have upheld for the past thirty years is just that what i just stated and if this court holds an appellant favor that would be the rule in the dat  valuation for this particular case would be august twenty sixth two thousand and four as a practical manner that means this case is nearly ready for trial because as of that date everybody was prepared the answer a hearing was already worldling and and the parties are just ready to proceed with their evidence but section five zero three f appears different than the will settle rule and interesting way there have been a whole lot of cases that talk about five zero three f and the ones that i found all of which which are in the fourth district are cases where there was no bifurcation so when five zero three half was far the date of trial for the grounds hearing the date of trial on ancillary issues so the grounds hearing was march of two thousand and one ancillary issues began in april of two thousand and four issues on division of property have not finished and so there's another trial in our future so there's that's the third date of trial the ambiguity is not only caused by the bifurcation but also by the realities of managing a modern civil non jury docket i think that it's not unusual for cases to be stretched out to fit a court schedule into a comedy continuances that all parties ask or which it applies one is the dissolution of marriage one is declaration of invalidity of marriage the third one is the disposition of property following a dissolution where the court lacked personal jurisdiction over an absen spouse and the first proceeding as a disposition of property following a dissolution where the court lacked jurisdiction to dispose of the property so in those of lance to proceedings where the court lacked personal jurisdiction or jurisdiction over may be something different for the other two types of cases the dissolution of marriage and declaration of invalidity of marriage and because why wouldn't the legislature have said in all cases when you have a hearing on the disposition of property vance the data valuation you didn't say that and all four of those will have a hearing on disposition of property but the first two aren't ever really is right i actually agree they had it's important to have a rule because it's wide and that's what and that's why it's on a survey question why our rule  i think well this is why our rule the reason why i think it should be our rule is because actually i have a hypothetical for you let's say van at the property in the property and this is not our case it's a hypothetical case and i know it's dangerous to go here because i'm sure that i'll be shut up by it but it's a way i have thought it through myself so the the property in a marriage is a business and liquid assets and let's say the husband has the business  the date of dissolution it's worth one hundred fifty thousand dollars the wife has a liquid assets on the deed of just dissolution it's worth fifty thousand dollars she puts it in a bank account the assuming the equitable division is fifty percent and a reasonable return on someone's cash at that time the site two and a half percent a year ok and but it's ten years between date of dissolution and date of trial ten years so let's assume that during that ensue ing ten year period that the business increases to two hundred fifty thousand dollars in value it's increased one hundred thousand dollars quite a bit and that the wife's bank account of fifty thousand dollars is only twenty five thousand dollars now because she gave half of it to her church but but all that property is marital property and the two parties had a responsibility to take care of it because because the ongoing case under the common law rule the business which is that you ation on date of dissolution the business would be valued at one hundred fifty thousand dollars and each party would get fifty percent and the rice liquid assets would be valued at fifty thousand dollars and each party get fifty percent so each of them would be getting one hundred thousand dollars one hundred fifty plus fifty and each of them also would be does would deserve to to claim a reasonable return on their money on the value of their marital state so say two and a half percent a year or whatever an expert would say would be a reasonable value and that would mean that each of them would also get another twenty five hundred dollars for each of the ten in soon years between date of dissolution and date of ancillary proceedings but to pay for that division you have to use the assets that exist at the time of the trial or at the time of the year word of the division and so what would happen in the dividing of the assets would be that each would  deserving of one hundred twenty five thousand dollars the wife only has twenty five thousand dollars remaining and so she she has twenty five thousand remaining but at the date of dissolution she had fifty thousand dollars so that fifty thousand dollars should be credited to the one hundred twenty five to what she does or she deserves and the husband therefore has to somehow get the seventy five thousand dollars whatever way he can to pay her share of the marital estate and so what happens with that is a band that the husband who has worked on the business that's only been under his control and that has grown will get the benefit of the of the appreciation of the business since total dissolution which he has you know used his efforts to grow and the wife similarly because she's given away half of her money you know beers and the consequences of that decision that she gave away part of america will stay to her church that right yes and that's what the court district said that there are provisions within the statute that will deal with that but i don't think that the remaining provisions of failed five zero three even up the playing field in this particular case because in the fourth the district says you know there's contribution provisions and so on but the reason why i don't think it they are a failure or even up the playing field is because i think the situation wasn't contemplated so because for instance maybe maybe a better appreciation of property for the business let's say results in  they had happen then the party claiming that they need to be bringing in burst has a greater burden of proof to prove that they had appreciation is because of their own contribution it's clear and convincing  evidence under five zero three c and so it's more difficult to prove your contribution and so it's not just like a preponderance of evidence kind of burden the burden is more difficult yes i think that he would have to come up with seventy five thousand dollars or he would have to prove that he diminishment was not caused by something he did so maybe it's a piece of real estate and the trial and ancillary proceedings occurred during the real estate cry ash well he didn't cause that you know so he could prove that the loss of value wasn't his that's a possibility but if he couldn't prove bant you'd have to come up with the money they have to borrow it because the spouses they are  estate as long as the case is ongoing and therefore and and therefore they need to act responsibly in trying to maintain or increase the value constant amendments and constant changes when this amendment was when it went into effect january the first one nine hundred ninety three it was under the property division therefore it's very clear that it was meant to extend cern the date of a valuation of the property and as indicated before i went back and looked up the statute while you were talking to counsel a one uses judgement doesn't use ground judgement doesn't use it uses a term judgement and occasionally judgement of does aleutian but never uses the term ground judgment now the reason this was done is i disagree with counsel i don't think the law was clear at all if you would read it and have you read judge bachmann's opinion on reference this matter i think he was quite on point he indicated that cases consistently before this use the term date of judgment date of judgment date of judgment without clarifying whether it's bifurcated or not and i believe that this was done by the legislature to specifically set forth the date for evaluation of property five zero three specifically indicates that and that was the reason for it there's been other modifications to five zero three concerning how we deal with retirement plans how we do with stock option to cetera this is constantly a work in progress i would therefore i think it is very clear the intent was clear and we should go by the statute in terms of evaluating property now i would like to jump on to what counsel indicated about the valuation in this particular statute this statute yes defines itself but there's a lot of case law that also but do we attribute it to this statute does tell us along with case law what we do we hire experts if our expert says scrap metal has gone up three hundred percent that this was injured we know this is not due to the efforts of the person who is managing the business we also have the ability to go through and get our experts to tell us what is an appropriate salary for someone in this business to manage a business when to and i date  therefore we determine if this person was paid twenty thousand dollars and one hundred thousand dollars should have been paid to him we have a standard to go by as to what their efforts will work if we however find someone took three hundred thousand out of a business a year and the time and location of that should have only taken one hundred thousand that's what a manager should have done we can use all of these to determine the real value and give him credit in terms of that so i am saying at the time of ancillary matters to me the legislature's clear it is done at the time of that hearing and that's how you value property and specifically as set forth in the brief you have five zero five zero three and it would be under c for purposes of distribution like five college as i'm looking at the wrong for c commingled marital and nine marital property and then you go to two one one the state of property makes a contribution to another state of property the contributing state should be reimbursed from the state receiving the contribution and then it has some more conditions in reference to that so that is one way we shall also defied divide the property without regard to marital misconduct in just proportions considering all relevant factors including the contribution of each party to the acquisition preservation or increase or decrease in the value of the mirror or non marital property i think what council well has overlooked is once you file for divorce unless you have a statutory exception such as retirement listed in the statute you have to define one main categorize marital or non marital property that's one of the reason the retirement statute was put in there because cord or on good cause shown the court shall not on remain and consider any increase or decrease and the value of any marital or non marital property or currying since the assessment of such property after your original trial or hearing whatever that is only used that assessment made a ritual here actually not in this particular case no but i can tell you that there has been a hail case which we've cited which did not use h because it said both parties had to stipulate to the value of the property at the time of the original trial in order to use that and then the hail case went on to determine at the trial court there had been misrepresentation by the husband even though it was settled and agreed upon as to a certain commission and ownership of something real estate i believe and on appeal he also said that this did not apply because the values would have to be stipulated to were determined by the court at the time of the  trial hearing and in fact they went back and use the value as of the current date saying they weren't going to allow someone to take advantage of the court and be an equitable so in this particular case based upon the hill case i would say this would not apply in this idea that if in fact we were to choose the date of dissolution would that not in fact encourage parties to sell their property or careers and move on with the rest lives rather than waiting thirteen years and maybe waiting to see if the market goes up or down ok that's first of all may i answer the first one the second part first if you want to be a fair and equitable resolution then you cannot choose the date they bifurcated the first part was entered because it is so unfair to different parties i disagree with counsel i think the gentleman who for no reason of his own his business was worth less later should not be penalize for it it's not clear there is a statutory thing in here to take care of dissipating for the wife who gave twenty five thousand to the church that would be considered dissipation unless that was normal customary blah blah blah approved by the house but so i think if you really want to just distribution of the property you have to follow this and find that it's the time of ancillary matters otherwise for example we all know what the real estate in the stock market it's been like if someone interviewed grounds judgment in two years later let's say did property and the man had an account in his name of one hundred thousand didn't have good investor and had twenty five thousand and the wife had an excellent financial advisor and had three hundred thousand i can't believe it's fair that she would take say basically to the you each keep your accounts were even when someone has three hundred thousand and someone has fifty or twenty five do so no fault of their own and no dissipation so therefore expression because of what's been occurring in the property in the markets that would be extremely unfair to one or the other and i think both parties should be treated fairly i don't think this goes one way if the business is worth less through notice a patient factors that can come in or done deliberately but yes that's the way it is now i'm down to a fact that the parties are no longer married and maybe shouldn't be held accountable for what happens to the other parties non marital your marriage well i believe if you take the statute for what it says you can't do that but i understand your whole don't agree with you well i think that's what the statute was put in there it's very specific it talks tell you ation it's under property now i was ask a question of why are we still here you really want to know that ok we started the hearing two days in april in two thousand and four there was a grounds judgment there we had three or four more dates set in september to finish up the trial the client filed a petition to bar the expert testimony that it wasn't disclosed after into the trial that motion was tonight then my client asked for continuance to hire an attorney help get another train that worked in the environmental matters so more subpoenas and stuff would have to be done three years there now and that is probably correct and if you will look at it you will see that if i think in the judge's thing on valuation date that was attached to counsel's argument that we had also asked for a petition for interim fees in order to forward to fund the case and that was denied this i don't want to say there isn't any urgency but it certainly would appear that way and i do think if you looked at the docket sheet it was two or three years if you say that's what it is i'm sure that's correct so that was sort of the history of the case in which was the pensioner retirement one in one thousand nine hundred nine and the other exception would be the stock options which was put in around two thousand and two honestly by i believe there's one more exception as i'm standing here but i can't remember other than that you're not allowed to call something part miracle  non marital if it's marital property want to pursue things are filed it's marital property all the way through i believe that the fairest thing to both sides is to evaluate at the time of the  the statute was amended it shows on its face it's under property that's exactly where it should be evaluated and that both parties will be treated equally and more fair and just in terms of doing the ancillary matters as a date to valuation of the property have thank you thank you