Who Outsmarts Who?


Leave it to parties going through a divorce to come up with an underhanded scheme to attempt to gain leverage in a divorce battle. In a recent Illinois case between two spouses getting divorced, the husband, David, decided upon a scheme that he thought would give him an advantage over his wife when the judge was ready to divide up all of the marital assets. During the marriage, David had been having an affair with his girlfriend, Cheri. After David’s wife, Helen, discovered the affair, she filed for divorce. David, who held title to a second home during the marriage, decided he would deed the second home to his girlfriend, Cheri, with the intention of moving in with Cheri near the end of his divorce from Helen. David, of course, thought that he and Cheri were “tight,” and after the divorce, Cheri would deed the property back to David or, at the very least, share in the proceeds of the sale of the property at a future date.

Unfortunately for David, after he transferred the title of his second property to Cheri, Cheri broke off the relationship with David, changed the locks to the property deeded to her, and refused to allow David to move in with her. David subsequently filed a third-party complaint against Cheri seeking to reclaim the property previously deeded to Cheri so that he and his estranged spouse, Helen, could now share in the equity of the property, rather than allow Cheri to keep the property. A hearing took place during the divorce process in which David claimed that Cheri was merely holding the property for David’s benefit in a “Resulting Trust.” (A Resulting Trust typically arises where one person purchases property with his own funds and simultaneously transfers title of this property to a third-party. In this case, David had not transferred the property to Cheri simultaneously with his purchase of the property).

Unfortunately for David (and his estranged wife, Helen), the trial court determined that when David deeded the second home to his paramour, Cheri, he made a gift to her. The three elements Cheri needed to prove that a gift had been made by David were: Donative intent, acceptance, and delivery. The trial court found that these three elements existed, and the second home now belonged to Cheri.

David appealed the trial court decision in the middle of the divorce proceeding awarding the house to Cheri, but the appeal was dismissed because David’s divorce proceeding had not yet been finalized. Once David’s divorce from Helen is finalized, David may well file an appeal again asking the Appellate Court to return the second home back to him and Helen.

The moral of this story is that it is not always best to try to “outsmart” your spouse during a divorce.

Contact the Law Offices of Michael P. Doman, Ltd. for your divorce attorney needs.

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