enjoy harris and i was asked to take this matter up for this trial now this appeal involves a divorce case it's not one of the normal thousands of cases that are reported about divorce that we can read about in the borders this is anything but a routine disagreement about asset allocation i think this case provides the court the opportunity to review the propriety of the trout words characterization of residential real estate as a marital asset in this case brian here he didn't purchased the house approximately four years before he married joe nevertheless the trout were found that the purchase was in contemplation of marriage thereby allowing the court to characterize the asset as marriage and the court ordered one hundred percent of the interest in that asset did you as a consequence of that allocation the overall division of the assets by the trial court was eighty percent to jill and twenty percent right now in this case i submit to you there are three dates that are significant that in general relationship are the property of the house eighty percent of all you know the house is not even percent of the so three years and two months later in the third and final date is july of two thousand and five that's when they were married so just under four years between the purchase of the purchase of the she must carry the burden of proof on the proposition that it was purchased in contemplation of marriage and therefore america last i submit to you that her case went well to its essential is a theory in search of fact in determining whether she has carry that burden we've got to evaluate the what and the when of the case where the when is the time of the acquisition the house that is october of two thousand was a mention that because in the brief filed by the leave here he also spent a great deal of time talking about activities which occurred after the house was acquired that's not pertinent to the analysis now what that's represented by a core group of factors that have been referred to for thirty some years by our courts of review the first and i think the most important factor is the proximity in time between the purchase of the asset and a mere second factor is the source of the funds used by the third who signed the offer she's worth how was  repeat none of the evidence in this case supports the court's findings on those who are group of factors what's the  there is no reported case illinois that supports the proposition that an asset acquired nearly four years before the marriage is acquired in contemplation or it simply doesn't exist in fact that's more than double i think the tipping point in this case was the fact that the parties cohabited together prior to the purchase and then up to the time their marriage and ultimately the separation and the fact that they had a child one would know that when you look at the the but to get to mr justice schmidt point if you add those factors that cohabitation in the child were out of wedlock and please understand i'm not making any sort of personal characterization of either of these people  families personally so i'm not making any personal characterization i'm making a statement of fact here though relying on those factors is bad policy it's bad policy because it's subverts the public policy undermine underlying the marriage of dissolution of marriage that that policy is to support and sanctify the institution of marriage these people weren't  matter there are no cases which have concluded that massive acquired more than fifteen or eighteen months was acquired in contemplation of marriage and there's some there are some other reasons for that the parties about possibly getting married in the future now in that regard i quoted the weisner piece where the court noted that it's not unusual or  uncommon or unexpected that people who are living together may talk about getting married at some point in the future now if that's where we want the legislation to be let's say so i don't think it is well so even taking the testimony at in a way most favorable to her what she talked about after the pregnancy became known is what happened and i would refer that case karen planned to eventually marry it fails to show that the anthony had similar plans that is an analogous situation to archimedes and what is significant here is that or is that where i'm sitting in the lystra he just indicates that's insufficient and that's why it's important to fall back on or keep in mind these core group of backers how this title taken in this case bryant or ti how or where did the money come from was it a joint effort or not in this case writing team up with a the a down payment who signed the offer sheet in this case brian side of the offer sheet so when you look at the core group of consider that i'm saying when you look at the core group of factors that all courts seem to rely upon and then you incorporating testimony if it's only one side talking in generalities something i think the evidence was that joan testified that there were comments or discussions now you and i might meet on the street and talk about a subject matter we had a discussion that made you insane when we talk about having a discussion doesn't necessarily mean that brian in this case acquiesced in that testimony he disputes her assertions other than yes they had discussions or she made comments about wanting at some point to get married now he's been mine her testimony is at about the time of the pregnancy and there were general discussions later but there's another factor remember that second day not to mention that second date is december of two thousand and four three years plus after the house and so when you take all of this together you have some vague generalities by the water and that's it so really what you're saying the whole the court in the hewitt case though some may say that's passe it was late seventy's we've gone way past that i don't think so there are a lot of reasons why we ought to follow the lessons in the you would please but the determination by the truck work and he's missing ninety nine point nine percent of all that money because for example he says all he did was talk about getting married this court and a very detailed opinion told the facts to show that they didn't just talk about they plan to get married they prepared their home for their marriage and for example when they when brian purchased the home immediately after he purchased the home all of the utilities were put in jails name she made all of the utility payments on the home she did the majority of the remodeling to the home and this is before they were married she and her family as well as brian and his family also put in a lot of money into that home before they were married you cannot ignore those facts because if you ignore those facts you are in essence ignoring the but that in my opinion that is what i considered disingenuous and by mr bowen to say it was his property or to say he purchased it legal title went into his name but he took a mortgage for a small amount i'm sorry took a more he made it down payment for a small amount he made the mortgage payments which were only three hundred sixty nine dollars a month she made utility payments and helped with the real estate taxes in the insurance payment so when you look at the amount of money that she put into the house versus what he did this is prior to the marriage they get married and then which is also critical the case this is what i said they missed ninety percent are facts when brian left the home he voluntarily left the home before gio filed for divorce he left his house that he is now claiming is not a marital house and he gave her the mortgage payment and said you pay the mortgage he didn't file for divorce joe file that that house be a not marital home it was his intent as his court found out through the fact he intended from day one that they were going to get married you have to look at the totality of the circumstances you have to look at all of the facts and if you saw on the grease mr bowen statement of facts was two or three pages mine was long not because i felt it would persuade you i felt you needed to know all the facts and mr bowen argues that i brought in facts after the houses purchase again those fa show that indeed brian intended to marry her there was no doubt that he intended to marry her i even found during the argument the portion of the transcript where brian's lawyer was questioning brian as to why he only put jill's name i'm sorry why he did not put jill's name on the title to the house and his answer was well i was the one they could financially afford it the lawyer asked again another f and he says well i was the one that paid for the house he was given every opportunity to say i didn't intend to marry her that's white put her name on the house he was given every opportunity in this lengthy trial to explain that he did not intend to marry her and he did not he kept bringing up financial issues and again in my opinion when you went and borrowed the money and then marital monies this is court explain and i'm sure marital moneys built up the equity in the self vera for him to say it's his house and for him to come in here on her grief and say to you you're taking away this house that this man had to sixty five thousand to pay off a credit card debt that he had prior to the marriage so right now we judge gave the house to joe she took it subject to the mortgage and there's a substantial mortgage on the house so cases i think in terms of the cases is because they were older cases and no one had the facts that we have in this particular case to show that and this is jew with many young couples nowadays they and if they have children not let wedlock and they purchase an asset they these two were planning to give mary and it just got stall yeah i know i probably are getting  yeah i probably didn't argue the facts more than the last and and i also want to state that the coroner in its ruling did a very good job of showing the credibility believe she said if you intend to marry and he said no but to say as we all know to say what you intended when you look at your actions and again she might when she said why didn't you put chose name on the deed well again he had every opportunity opportunity to say she was not going to be my wife i didn't intend to marry her we were just going to live together that his answers were not that his answers were i paid for the house well no he didn't pay for  done that but this is the house where she and the children live and that brian intended for them to live and again i'm the judge in his written opinion didn't necessarily focus on this left his house he did not in financial filings with the core two of them i put in the facts he did not at any time say this is mine i'm her last said i want this house i put it into evidence to show intent because it's to brian's advantage now to say you know i didn't intend it to be a marital asset i put into evidence a letter that you wrote jill to show intent when they were trying to discuss who would get what he didn't want the it was only after he started realizing that he wasn't getting his way on other issues that he then said you know this is not marital asset and i'm not saying that that takes away from the legal characterization of the assets but what was tremendous about this case was all of the facts show that he never intended this has had to be anything other than their house i put in a lot of testimony that  branca calling it our house this is our house this is what jill i i remember cross examining brian think this is that painting that you put on the wall she's looking at it and make payments on it you have to maintain the house jill did that jill did all of that and the plan to be in that house as a family we purchased the house it was a three bedroom house they have one child i meet there with there's absolutely there is zero evidence that they purchased it to cohabit to well that's an issue in the case that if it's remained it certainly is and with regard to contribution if the wife takes the position that she ought to be reimbursed for contribution or is not marital estate it's a jump that what they did say and then counsel's brief indicated when you look at for example the proximity issue they took the position that view of the law on that factor doesn't involved in the business of acquiring this asset nevertheless counsel of course that that fact alone does not preclude the court's conclusion that's how they went down the list each one individually doesn't preclude doesn't include factors the evidence supports the court's conclusion the answer is it doesn't that's why i think the the fact that they cohabited the fact that they had a child is the tipping point  well no i'm not saying that but the question is is that a policy this court or any court ought to promote and i submit to you that the answer to that is none but the real world here is that we we dictate policy but we don't like the consequences or the complications those policies break well this is one of those situations when this house was bought bryan gilded when they had a child the child wasn't the product of parties that were married though most factors have brought complications now that's why i say if we're going to incorporate those factors then let's say so let's have an intellectual integrity to say that factor the child born out of wedlock or cohabitation ought to count in the mix if this court does then you would be the first it's my belief that the core factors as is any or the rest at issue in the fuse to consider the fact or not not from the opinions they get you read in other words there is no rejection no formal or stated rejection unprecedented expansion or extension of this concept and i think that that creates all kinds of problems and i think we are well advised to follow our