A public school teacher filed for dissolution of marriage.  Her husband was a disabled pharmacist.   They had been married for 37 years.

The trial court divided the property of the parties between them.   It awarded each party a one-half interest in wife’s pension from the Teachers’ Retirement System (TRS).  It denied wife maintenance.  Wife appealed.

She argued that the trial court should have awarded her pension solely to her.   Or, it should have granted her maintenance.  In an amount equal to the payments husband would receive from her pension.

The Appellate Court reversed the trial court result.  It found that the trial court was wrong in awarding half of wife’s TRS pension to husband.

Pension benefits from contributions made during marriage are considered marital property.  They are subject to division upon dissolution of the marriage.  However, a different rule may apply when one party is receiving Social Security benefits and the other party participated in a pension system in lieu of Social Security.

Wife had also asked the trial court for maintenance. The trial court denied that request.  Wife had wanted maintenance if the court was going to give husband half of wife’s TRS benefits.

The Appellate Court said that the trial court made a mistake in not giving wife maintenance.  Either she gets maintenance or husband should get less than half of her retirement benefits.

A court is not allowed to consider Social Security benefits that husband is receiving in its division of marital property. Social Security benefits cannot be considered in property division.   But, they may be considered in determining a maintenance award.

Evidence at trial shows that when wife retires, she will be unable to support herself.  But, husband will have the ability to pay maintenance.  The trial court should have reserved maintenance until wife’s impending retirement.   Then the court must consider the value of husband’s Social Security benefits in determining the amount of maintenance that wife should receive.

Wife would either get more of her TRS benefits or she would get maintenance.

In re Marriage of Roberts, 2015 IL App (3d) 140263