years and during their separation the latter part of the married parties had originally enjoyed somewhat similar income streams after the dissolution and really entirely as a result of the court's order seven and content of the course for itself it's clear that this repositioning is largely the result of the court's interpretation and application of the ninety and may specifically to the extent that it barred the pension is property subject to this division with extent that the court's order resulted in an in an equitable distribution that would be subject to the expression now i've reached five issues for this court today but today i really want to focus only on the issues of the pension  how it was how it was handled by the trial court and that is because it's the most important issue to my client and frankly i think most important which case by way of toiling down those issues i want to just really address basically three questions w these particular circumstances and with respect to answering that third question which i will get into more and more detail later on our argument that the trial push court should have required pension as income and its failure to do so ahead of the major pension property you're probably going to get the answer yes and if you look at the i m d m a in supporting case law that deal with pensions at the time of dissolution answer is also yes but if you ask a retiree  how to resolve this apparent discrepancy in the statute how do we resolve this apparent discrepancy in the case law why i would argue that the real discrepancy is a matter of a tiny when is it when is the income when is it property and the distinction between how the typical divorce case plays out in terms of time and circumstance differs from this the case at hand is distinctively reported here when you get that thirty or forty year old infant in the court room i'm going through there the solution both parties are working that tension is clearly in the property box and courts and spoke a lot and put a lot of trees to get us to a place where we can analyze how the bike back up how to value it who gets what and how do we treat awakening at least for colby one of those parties that that thing is it is now to the front property box into the income box and now even if it was divided back here at the solution we have a brand new set of rules for how to deal with that given the circumstances of the parties now what does that have to say about the case we have a hand well what we have is a situation where the constellation of facts where the retirement preceded the dissolution by a fair amount of time and the pension itself was utilized within the marriage to establish the standard of the standard of living that the parties experienced the party split separately for several years before they were there dissolutions finalized and during that time even during part of so we go back to the question is when is the difficulty that i think the trial court faced in this particular instance was focusing in very narrowly on that time issue and how it didn't seem to size up trial for that first she divide up that this property give her that aquittal share and then determine whether or not megan says is warranted that the distinction between that case and the case at hand is the fact that there just isn't enough of the pie to go around after you divide that pension up at least not for my client ultimately the result of this case is that by virtue of dividing up the pension you've moved the parties from a place where they're pretty close in terms of their resources  it's to my client having not near enough and her having substantially more where in mangere you are moving the varies from place here to them about here so what do you do when you don't have enough property to go around in order to accommodate wherever their side of the property has or not you principles that were applying here these are simply other rules that come into play when you're dealing with the subject of situations apart in fact if you look at in rate marriage of charles the court there indicated that there should never be a situation where one party gets the stand the standard of living that they've enjoyed marriage at the reduction of the other party and in this case to keep the difference between that standard in the both have some nominal inheritance interest that they continue to derive something from but only missionary retains a business that she continues to operate and accumulate wealth with and presumably an asset that she can sell when she chooses to retire only mission it retains real estate that can be used to drive into farming if nominal farming income from and when marty reaches the time that he can draw considerations and felt that the vision was that equitable distribution it's not clear to me specifically which facts it come it's had on but it was aware of the comments that the court made if the motion to reconsider hearing however i think are particularly telling so going to what to be consider the court think this was an equitable distribution i don't think the truck court it if you look at the motion to reconsider hearing it has forty seven of the trial court area basically that that would require some guidance which suggests to me that the court was mostly focused on the black letter definitions that were being and have to pursue some limitations that weren't there i don't understand why  sense that it was limiting itself to defining it as property i think that the equitable distribution resulted from its perhaps fixation on that specific action and and perhaps abandoned some of these other factors at that point types and essentially stopped its analysis and i can only speculate as to that because i can't imagine any other way to get the distribution that i had especially when it could have awarded maintenance or some other  offsetting payment and it didn't represented that your client's gross income following the court's judgment was reduced from twenty eight hundred approximately per month down to for you mine up my heel ations her that no your honor because i'm considering them grows prior to any deductions and i would include health insurance my client pays approximately five hundred dollars or so a month give or take for health insurance if going to the record and i don't know what to what extent that would change i'm post the solution i believe the record reflect reflected that she had looked into cobra but no other health insurance option so i'm really not sure on how that health insurance difficult for him to remain employed he is a little bit older than one chooses to continue to work and doesn't have any health considerations that appear to be interfering with that ability in terms of what i think one of the more telling factors that should be considered by the court was how the property distribution would affect the parties financially at the time of the property just you should take a fact if you take a look at the factors that would come into play for considering whether or not maintenance would be warranted also very telling merely eleven of the twelve factors provided there would be in favor of my client receiving maintenance but only as a result of the court's distribution of property in the parties court at the beginning of their dissolution they were not in a position where maintenance would've been something that my client should have needed to have the distribution of property and in their financial interests been equitable my plan ultimately walked out of court a very discrete understanding of what it tension is and without regard to any of the timing or circumstances of the parties that are truly relevant in the situation and the fact that it indicated  hopes that the court the few pinions would be appealed and hopes that it would be an opinion from which she would get some guidance suggesting to me that this court struggled with its decision and that it really u of property pursuant to this section all benefits including pension pension benefits available under the illinois pension folks and it defines other pensions iras defined contribution plans and so forth acquired by or participated in by either spouse after the marriage and before a judgment of dissolution of marriage or a legal separation is entered are presumed to be marital property and the only way that presumption can be overcome is that the trial court is convinced that it's not marital property under the nine marital property factors with a decision from a trial court but a litigant as dissatisfied in this particular case the second bite of the apple when instead the apple on suburban is to show that this judge has used his discretion that no reasonable person would have adopted his position and when we look at the statutory authority for defining pension benefits  pension benefits and pay status or property as well so to try to train change the definition of what pension and retirement benefits have been characterized in illinois for decades before this court is improper and it's not because the court one found that this was property number two found it to be ethical based on all the evidence presented to it that that be divided in some way shape or form in this particular case the trial court determined that an equal share of the marital benefits be divided between the litigants and following the purposes in the fact that these retirement benefits were unpaid status doesn't change the very nature is being property they're still considered property to be divisible now some mass has been presented to you by the  t today which i think changes the better argument that this isn't property at all so it shouldn't have been divided as property to one of well even if it were property it wasn't fair because wife ends up with more  when coming husband i would suggest to you that the record is clear that that's not the case i didn't provide that in my brief as well but while i was listening to argument i quickly did some math and within our brief we did outline the findings in terms of what you to these parties had within without the retirement benefits what husband has is eight hundred dollars per month in pension benefits after the thousand dollars per month is paid to wife if a quadro is entered and that division is a he that's roughly twenty one thousand six hundred dollars a year what husband doesn't include is that he receives anywhere from three fifty thousand to fifty five hundred dollars in trust income and he's the benefit of a family tree he's the beneficiary of a family trust that pays  income and he produces crops each year the most recent crop evidence value available is sixty eight hundred dollars per year that puts him at thirty three thousand seven hundred fifty eight dollars per month the evidence was one contradicted that wife in this case works two jobs while husband remains on employed since he retired at age fifty two the evidence was also clear she asked him to work an additional four hours four years until their daughter graduated from college which he didn't do so it he retired f b i agent fifty two while she continues to work two jobs as a hairdresser and working in her family town for her income from that net each year is fourteen thousand three hundred fifty dollars so receive pension benefits of twelve thousand dollars for a total of twenty four thousand three hundred fifty dollars annually and you're correct justice harris what we have to take into consideration is and she pointed this out at trial i believe the court considered this very much eight hundred dollars plus almost seven almost nine hundred dollars of her monthly thousand dollars in pension benefits will go to having to get health insurance for self and there was never an argument presented at the trial court that i found in the record that there was other better insurance press elf employed hairdresser in the coverage she had located and so even after the courts distribution husband will still end up with more disposable income and husband can work because the evidence was also i enjoys a large piece of recreational property in the state i'm in that was awarded to him he hunts he fishes he attends that property he works crops there is no evidence suggesting that his health was any worse than wife's health and she gave testimony about how hard it's been for her to stand on her feet all day and work as she does so in essence even though i don't believe the argument was made at trial that well i'll strike that even if we were to consider this a non property issue and this is an income issue what the alkaline is essentially asking you to do is tell the trial court that why shouldn't get any of this because although counsel states there were other remedies i e maintenance both parties requested the other be far from receiving maintenance and either party requested maintenance this wasn't this fall support case so i'm like the shrimp decision where the trial court did not find pension  property that wasn't to find the property decided to give wife maintenance from those same funds martin such suggesting that valerie get a dime of that's not a dime in any way shape or form whether we call it property or it's and the man her decision that council also has cited to actually supports our position in this case we're in the trial court in that case also awarded maintenance and reserve jurisdiction on the pension issue and the appellate court said that was an of discretion it's a very valuable asset that should have been divided between the parties why shouldn't have been denied their time value portion of have mentioned by having to wait until some date in the future and receive me answering the interim so i think it's directly to the record and i'm page three of my actual statements to the board i outlined citing directly to the record the evidence that was presented in that regard there is a figure for m martin that has and at thirty three thousand six hundred years before he shares pension benefits with his ex wife the record in my opinion was clear that is refused to eighteen hundred dollars a month or twenty six twenty one thousand six hundred per year yet the twelve thousand per year is then over and to valerie's son goes to valerie and then if we pair with that which council did not share with you the other end come may receive she shares with you that wife did receive other income as a hairdresser and working in the tavern the record is clear that those amounts total on a net basis or a teen and some thousand dollars per year that's all she doesn't make a lot of money she did not share with on him puts it appears i'm not sure one hundred percent on that but it appears from my reading of the record that was considering his income or his profit fairly large parcel it's my understanding that there's a fairly decent hay production piece of ground where they were is hey i guess the detail on that at trial would indicate that it does can join the real estate on which the marriage marital home is located and it was deeded from the trust over into i do not the more you disagree well because in this case and family what we're trying to determine is whether this is a non marital in nature and if we go through the five zero three factors to identify a non hurdle inherited in gifted properties can be and we as lawyers know what that means yes i will say overcome the one point zero argument myself ok well well again i would suggest there's two points that support valerie's position on this first is the testimony at trial that this was meant to make one parcel that was in joint tenancy by the parties bigger it was to square it happen add to it and then the deed itself doesn't say so on or ship to mark the grand tour de sole ownership to martin transferable valerie upon his staff that means something it means that he doesn't have exclusive beneficial interest in this property he has a beneficial interest in his property until he dies wh so i'm not sure the deed controls as much as this clearly was meant to be gifted from norton's non marital estate to the marital estate to make their marital parcel bigger to make it make more sense in terms of boundaries they that regard i think the testimony that by all involved that this was meant to make our marital residence property whole it made sense to take this pie's shape and add it to the marital property the fact that valerie's name is included within the deed to have an interest in  property the fact that they enjoy this property gather live there used it mowed it trimmed it and she relied upon that in her request to have this residence awarded to her it only makes sense to have it put with it and i have one more thing i think is very important martin never attained a separate valuation for that parcel both parties relied on a fair market appraisal that had all three parcels together so how was martin to argue and how is the trial court to find what the value of the other two pieces the deed actually supports valley's position that her name is with them at the now why they use this language i don't know if i don't do estate planning as white toddies for even back then or or what but the intent of the parties was to make the marital residence personal honors there are just a couple of items that i want to deal with specifically with respect to the crops that my client apparently has access to growing new trial record is clear that he is not able to actually drive substantial income from actually the property that remains in this schmidt's possession and the trial record also indicate that the party with whom marty previously had works that ground with was his brother and that his brother would be amenable to continuing to i was basing my numbers really on the hard numbers that the parties provided yes my client receives trust income as a portion of his estate but yes michelin receives a part of an inheritance as well so work the job that she at her at the family's tavern she testified to on the record was a volunteer position and in fact the tavern could not produce any documents going to what kinds of payroll or really anything that they were paying in terms of his expected to get a job but she's not expected by a hell of a police argument to seek a lesser expensive surance which brings us to the reasonable view abuse of discretion standard in terms of abuse of discretion i don't think any reasonable person could possibly allow one party to have to reduce their standard of living in order to improve the standards of the other as far as the case law that goes to on supporting their pension is property to determine whether something is marital or non marital property is to man the best way of the evidence standard in the tickler instance of dealing with the deed at hand it is my understanding of the the decided that it was a it was a piece of the barrel property health stuff where i do believe that this is the court's decision was an equitable partly as a result of its impact on my clients on day to day