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Monday, October 27, 2008

Some Good Old Fashion Creative Lawyering

There's not enough of this quite frankly. Too much of what I observe is akin to an echo chamber of lawyers repeating the same arguments over and over. Or being too lazy to do any legal research to better represent a client. If you're not making a creative sort of off-the-wall argument every few months or so, you may not be representing your clients effectively.

I fondly recall a Motion to Vacate a dissolution of marriage judgment our firm filed within the last couple years asking to undivorce two parties who thought they'd been properly divorced some 20+ years ago based on the Court's lack of personal jurisdiction over our client at the time the Judgment had been entered. I remember my opposing counsel's first call to me upon receipt of our motion...something to the effect of "Do you even practice family law?" Well, yes and I also know the code of civil procedure thank you very much. We didn't really want to undivorce the parties but it was nice to knock some $100,000 off of an alleged child support arrearage.

I got to thinking about the above as I've followed the debate over a post-divorce/collection case recently, In re Marriage of Takata and Hafley (IL App. 3rd), Case No. 3-07-0175. Most of the commentators out there say that it was wrongly decided, and it very well may have been, but it's some darn good and creative lawyering by the appellant (and the victor at the appellate level) win or lose. Haven't heard whether or not it's heading up for the Supremes to take a look at.

In a nutshell, the facts are simple, a custodial parent was attempting to collect a judgment of some $25,000 related to unpaid child support from her now remarried former husband. And the custodial parent (who's a lawyer and represented herself) used 735 ILCS 5/2-1402(c)(3) to go after her former husband.

(c) When assets or income of the judgment debtor not exempt from the satisfaction of a judgment, a deduction order or garnishment are discovered, the court may, by appropriate order or judgment:

(3) Compel any person cited, other than the judgment

debtor, to deliver up any assets so discovered, to be applied in satisfaction of the judgment, in whole or in part, when those assets are held under such circumstances that in an action by the judgment debtor he or she could recover them in specie or obtain a judgment for the proceeds or value thereof as for conversion or embezzlement. A judgment creditor may recover a corporate judgment debtor's property on behalf of the judgment debtor for use of the judgment creditor by filing an appropriate petition within the citation proceedings.

There's a line of cases under this section of the ICCP that supports a judgment creditor's stepping into the shoes of a debtor to sue a third party in the debtors stead. I.e., judgment debtor has access to $$ that he could recover from a third party but chooses not to assert his rights. So now judgment creditor asserts debtor's rights against third party. So in the case above the custodial parent is allowed to collect a judgment against her former husband's current wife's IRA.

The critics say this is wrong because the current wife's IRA isn't "marital property" until a dissolution of marriage is filed between the father and his current wife.

Maybe so and I'll let people far smarter than me figure that one out (unless it comes up in one of my cases of course), but in closing, I just appreciate some good old fashion creative lawyering when I see it.

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