In a divorce case, there was a disputed $1,551,616.48 Fidelity account. At one time, this account contained the husband’s premarital fund. It was a joint account between the parties.

Later, the husband transferred the account solely to his wife. The husband testified he transferred the account to his wife to protect the account from two malpractice actions that were then pending against him.

He anticipated the account would be returned to joint ownership upon his retirement. The husband admitted he understood when he transferred the account into his wife’s name that it was no longer a joint account. He also understood that he did not have any ownership interest in it.

The wife testified husband gave her the account as a gift. Because “ he’s substantially older than me. And he wanted me to feel secure”. And “at that time he cared about me.”

Husband argued that wife did not claim the account as her nonmarital property in her response to his interrogatories. She first did so in her supplemental pretrial memorandum.

The trial court found that the husband made a gift of the account to his wife. And that the account was the wife’s nonmarital property. In doing so, the court stated “on my assessment of the credibility of the witnesses, I believed more likely her version of the events. And determined that amount, that fund to be nonmarital property, so I awarded it to her.”

Non-marital property transferred into some form of co-ownership between the spouses is presumed to be marital property. The converse is also true. It is possible for one spouse to make a gift to the other of marital property. The recipient can claim it then as nonmarital.

The presumption can be overcome only by clear, convincing, and unmistakable evidence.

The husband essentially argues that he was lying to his creditors when he transferred the account to his wife. He says that he did not really intend to give up his interest in the account. Was the husband lying then or is he lying now?

The decision was one for the trial court, and the court resolved it against the husband. There was certainly some evidence in the present case to support the trial court’s decision. It is the province of the trial judge to determine the credibility of the witnesses.

IRMO Barnett, 344 Ill.App.3d 1150

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