When relationships fall apart, people quickly seize the items that they believe are theirs (or just want). Often, they will take things that do not truly belong to them in order to spite the other party.
“No, you didn’t have to stoop so low
Have your friends collect your records and then change your number
I guess that I don’t need that, though
Now you’re just somebody that I used to know” – Gotye, “Somebody That I Used To Know”, Making Mirrors (2011)
Some items matter; keepsakes, unique items, items with sentimental value. Illinois law is not operated by the rule of “finders keepers.” You can ask an Illinois court for what is rightfully yours.
How do you get specific items back after a break-up in Illinois if you are married or unmarried?
Getting Your Stuff Back In An Illinois Court If You Are Married
If you were married to the person that has your stuff, there’s a very sophisticated labelling system to determine what is non-marital and, thus, non-divisible and what items are marital and, thus, divisible by the court.
Until the divorce is granted, there is no absolute allocation of any disputed item. “[U]ntil a final determination is made by the trial court regarding the division of the disputed personal property pursuant to the petition for dissolution of marriage, [a party to a divorce] can claim no clear, ascertainable legal right to the exclusive possession of that property. At the present time, each party has an equal possessory right.” In re Marriage of Sherwin, 123 Ill. App. 3d 748, 753 (Ill. App. Ct. 1984)
While the final say of who gets what does not happen until the end of the divorce case, an Illinois divorce court can order just about anything while the divorce case is pending.
An Illinois divorce court can award “appropriate temporary relief…in the discretion of the court” 750 ILCS 5/501(a)(3)
Either party can be awarded possession of an item and be ordered to keep the item safe until the final allocation of that item.
An Illinois divorce court can order the “restraining any person from transferring, encumbering, concealing or otherwise disposing of any property except in the usual course of business or for the necessities of life” 750 ILCS 5/501(a)(2)(i)
The “item” most people desire to keep and not divide is a pet. If the parties are married, the court effectively awards custody of that pet to the most worthy pet owner (or divides custody as they would with a child).
“If the court finds that a companion animal of the parties is a marital asset, it shall allocate the sole or joint ownership of and responsibility for a companion animal of the parties. In issuing an order under this subsection, the court shall take into consideration the well-being of the companion animal.” 750 ILCS 5/503(n)
Unmarried people cannot use the Illinois Marriage and Dissolution of Marriage Act to divide a pet’s time. Unmarried people may only use an “action in replevin”
Replevin To Recover Items From Unmarried People In Illinois
Replevin is “a lawsuit to repossess personal property wrongfully taken or detained by the defendant, whereby the plaintiff gives security for and holds the property until the court decides who owns it.” Black’s Law Dictionary (11th ed. 2019)
“The primary purpose of the Replevin Act is to test the right to possession of personal property and place the successful party in possession.” ST Enterprises, Inc. v. Brunswick Corp., 315 NE 2d 1 – Ill: Supreme Court 1974
“Whenever any goods or chattels have been wrongfully distrained, or otherwise wrongfully taken or are wrongfully detained, an action of replevin may be brought for the recovery of such goods or chattels, by the owner or person entitled to their possession.” 735 ILCS 5/19-101
“Replevin is a strict statutory proceeding, and the statute must be followed precisely.” Carroll v. Curry, 912 NE 2d 272 – Ill: Appellate Court, 2nd Dist. 2009
Actions for replevin must be filed in the state and county where the items are located.
“The venue provisions applicable to other civil cases shall apply to actions of replevin; and in addition an action of replevin may be brought in any county in which the goods or chattels or any part of them are located.” 735 ILCS 5/19-103
The complaint asking for the items must be specific in describing the items and why they belong the plaintiff.
“An action of replevin shall be commenced by the filing of a verified complaint which describes the property to be replevied and states that the plaintiff in such action is the owner of the property so described, or that he or she is then lawfully entitled to the possession thereof, and that the property is wrongfully detained by the defendant, and that the same has not been taken for any tax, assessment, or fine levied by virtue of any law of this State, against the property of such plaintiff, or against him or her individually, nor seized under any lawful process against the goods and chattels of such plaintiff subject to such lawful process, nor held by virtue of any order for replevin against such plaintiff.” 735 ILCS 5/19-104
Notice is required for the party in possession to prepare their argument of why they should keep the item.
“The defendant shall be given 5 days written notice in the manner required by rule of the Supreme Court, of a hearing before the court to contest the entry of an order for replevin. ” 735 ILCS 5/19-105
“[A] replevin action generally cannot be maintained until the plaintiff has made a demand for the surrender of the property and the defendant has refused. The purpose of the presuit demand is to afford the defendant an opportunity to return the property to the one entitled to possession without being put to the expense and annoyance of litigation. However, a demand is not necessary before bringing suit in a replevin action where the circumstances indicate its futility.” Carroll v. Curry, 912 NE 2d 272 – Ill: Appellate Court, 2nd Dist. 2009
Finally, a hearing is conducted to determine who the items belong to…at first blush.
“At the hearing on the entry of an order for replevin…court shall review the basis of the plaintiff’s claim to possession. If the plaintiff establishes a prima facie case to a superior right to possession of the disputed property, and if the plaintiff also demonstrates to the court the probability that the plaintiff will ultimately prevail on the underlying claim to possession, the court shall so find as a matter of record and an order for replevin shall be entered by the court.” 735 ILCS 5/19-107
The plaintiff bears the burden to “allege and prove that he [or she] is lawfully entitled to possession of the property, that the defendant wrongfully detains the property and refuses to deliver the possession of the property to the plaintiff.” International Harvester Credit Corp. v. Helland, 130 Ill.App.3d 836, 838, 85 Ill.Dec. 922
If the court determines the property is theirs, the court can issue an order for the sheriff to pick up the item and deliver the item to it’s (now deemed proper) owner.
“After holding a hearing on the matter, the court shall issue an order of replevin if plaintiff establishes a prima facie case to a superior right of possession of the property and if plaintiff also demonstrates to the court the probability that she will ultimately prevail on the underlying claim of the right to possession.” Koerner v. Nielsen, 8 NE 3d 161 – Ill: Appellate Court, 1st Dist., 1st Div. 2014
“The order for replevin shall require the sheriff, or other officer to whom it is directed to take the property, describing it as in the complaint, from the possession of the defendant, and deliver the same to the plaintiff unless such defendant executes a bond and security as hereinafter provided, and to summon the defendant to answer the complaint or otherwise appear in the action, or in case the property or any part thereof is not found and delivered to the sheriff or other officer, to answer to the plaintiff for the value of the same.” 735 ILCS 5/19-109
“If the defendant fails to deliver up to the sheriff the chattel which is the subject of the order for replevin and the plaintiff has a reasonable belief as to where the chattel is sequestered, the court may authorize the sheriff to use reasonable force to enter into the property to recover same upon such terms and conditions as the court may direct.” 735 ILCS 5/19-117
The defendant can at anytime defend their ownership of the item subject to replevin.
“The defendant shall answer or otherwise appear as in other civil cases.” 735 ILCS 5/19-119
The defense to a replevin action is almost always, “It may have been theirs in the past but they gave it to me. Now it is mine.”
“If plaintiff makes such a prima facie showing, the burden then shifts to defendant to establish the elements of a valid gift by clear, convincing and unequivocal evidence.” Koerner v. Nielsen, 8 NE 3d 161 – Ill: Appellate Court, 1st Dist., 1st Div. 2014
Engagement rings are a common subject of replevin actions.
Engagement rings are conditional gifts. “[A]n engagement ring is a gift conditional on the subsequent marriage of the parties” Vann v. Vehrs, 633 NE 2d 102 – Ill: Appellate Court, 2nd Dist. 1994
“The law in Illinois appears established that a gift given in contemplation of marriage is deemed to be conditional on the subsequent marriage of the parties, and the party who fails to perform on the condition of the gift has no right to property acquired under such pretenses.” Harris v. Davis, 139 Ill. App. 3d 1046, 1048 (Ill. App. Ct. 1986) (citations omitted)
The conditional gift of an engagement ring is conditioned on who rescinded from the offer to get married.
“In a replevin action involving an engagement ring, the correct inquiry in deciding which party is entitled to possession of the ring is which party’s act conclusively ended the engagement.” Liceaga v. Baez, 126 NE 3d 682 – Ill: Appellate Court, 1st Dist., 4th Div. 2019
The details of the break down of the relationship are irrelevant to an Illinois court.. All that matters is determining which party broke off the engagement.
“A court does not consider why an engagement ended, i.e. the underlying fault for the relationship’s breakdown, but only which party performed the act actually ending the engagement.” Liceaga v. Baez, 126 NE 3d 682 – Ill: Appellate Court, 1st Dist., 4th Div. 2019
Replevin must be distinguished from other court orders which deem that a party owes another party money and, therefore, their assets become attached. If that has happened…you cannot use replevin to get items to satisfy the judgement.
“No action of replevin shall lie on behalf of a defendant against whom a judgment or attachment is in the process of enforcement, to recover goods or chattels seized by virtue thereof, unless such goods and chattels are exempted, by law, from such enforcement of the judgment or attachment; nor shall an action of replevin lie for such goods and chattels at the action of any other person, unless such other person has, at the time, a right to reduce the goods taken to his or her possession.” 735 ILCS 5/19-102
People get petty after a break up. They sell, give away or destroy items the other person would have wanted. If the item is no longer in existence or has disappeared, then the value of the item can be awarded by an Illinois court.
“[I]n case the property or any part thereof is not found and delivered to the sheriff or other officer, to answer to the plaintiff for the value of the same.” 735 ILCS 5/19-109
The party requesting the item has an absolute right to that item if deemed to have the right of possession. The other party cannot force the court to allow them to buy it.
“There is no authority, under the statute [the Replevin Act], for the court to render judgment for the value of the property, as in an action of trover, except in cases where it shall appear the officer was unable to obtain it on the replevin writ.” Kehoe v. Rounds, 69 Ill. 351, 353 (1873)
If the item the party is seeking is given away (or sold) to a third party, it might be a fraudulent transfer which can be clawed back.
“A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation:(1) with actual intent to hinder, delay, or defraud any creditor of the debtor; or (2) without receiving a reasonably equivalent value in exchange for the transfer or obligation” 740 ILCS 160/5(a)
“”Claim” means a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” 740 ILCS 160/2(c)
Replevin only works if you do not have a judgment already. Claims can exist “whether or not the right is reduced to judgment”
“To state a claim under that section [of the Uniform Fraudulent Transfer Act], a plaintiff must allege the existence of both a creditor/debtor relationship and a claim.” Reidy v. Reidy, Ill: Appellate Court, 1st Dist., 6th Div. 2021
“”Creditor” means a person who has a claim, including a claim for past-due child support.” 740 ILCS 160/2(d)
“”Debtor” means a person who is liable on a claim.” 740 ILCS 160/2(f)
If the court deems the transfer to be legitimate, the other party can NEVER ask for the item back.
“[T]he law will not permit a party to deliberately place his property out of his control for a fraudulent purpose and then, through the intervention of a court of equity, regain title after his fraudulent purpose has been accomplished. Rather, the court will leave the parties as it finds them.” Gunn v. Sobucki, 837 NE 2d 865 – Ill: Supreme Court 2005
Splitting Up Real Estate Unmarried Couples Own
If an unmarried couple owns real estate together, as in, both of their names are on the deed, they must divide the property (if they are disagreed) via a partition action.
“When lands, tenements, or hereditaments are held in joint tenancy or tenancy in common,…or other form of co-ownership and regardless of whether any or all of the claimants are minors or adults, any one or more of the persons interested therein may compel a partition thereof by a verified complaint in the circuit court of the county where the premises or part of the premises are situated.” 735 ILCS 5/17-101
If only one member of the unmarried couple has their name on the deed to the real estate…the other party has no claim to that property…unless there was some arrangement in writing.
“No action shall be brought to charge any person upon any contract for the sale of lands, tenements or hereditaments or any interest in or concerning them, for a longer term than one year, unless such contract or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing, signed by such party.” 740 ILCS 80/2
Relationships fall apart all the time. As the old saying goes, “If someone can walk away from you…let them walk.” Just don’t let them walk away with all your stuff.
If you would like your stuff back, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.