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In Re Marriage of Musser

OPINION FILED APRIL 18, 1979.

IN RE MARRIAGE OF JAMES PATRICK MUSSER ET AL. — (JAMES PATRICK MUSSER, PETITIONER-COUNTERRESPONDENT-APPELLEE,

v.

MARGARET MONA MUSSER, RESPONDENT-COUNTERPETITIONER-APPELLANT.)



APPEAL from the Circuit Court of Macon County; the Hon. JOHN L. DAVIS, Judge, presiding.

MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Is a military retirement pension "marital property" under the Illinois Marriage and Dissolution of Marriage Act?

In short — yes.

We reverse.

Margaret and James Musser were married in England on November 24, 1956, while James was in military service. As a result of his service from December 22, 1954, to January 1, 1975, he annually receives military retirement pay of $6,335.80. On January 6, 1978, Margaret sought a dissolution of the marriage.

At the time of the dissolution hearing, their daughter was 19 and married and their son was 18 and in high school. James was employed as an automobile salesman earning $11,326 in 1977. When he began selling automobiles 2 1/2 years earlier, he earned approximately $7,000 per year. Margaret had been employed at a bank in Decatur, Illinois, for nearly 2 1/2 years at the time of the hearing and earned $7,016.42 in 1977. Prior to this employment she had worked for 1 year at a jewelers in Decatur and had worked — full or part time — in England from 1968 to 1973.

The trial court entered a judgment on May 1, 1978, dissolving the marriage and ordering James to pay $30 per week child support and $50 per month for 1 year as maintenance. The judge also held that the military retirement pension was the exclusive non-marital property of James. On appeal, Margaret contends that the military retirement pay is marital property.

The Illinois Marriage and Dissolution of Marriage Act defines marital property as follows:

"(a) For purposes of this Act, `marital property' means all property acquired by either spouse subsequent to the marriage, except the following, which is known as `non-marital property':

(1) property acquired by gift, bequest, devise or descent;

(2) property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise or descent;

(3) property acquired by a spouse after a judgment of legal separation;

(4) property excluded by valid agreement of the parties;

(5) the increase in value of property acquired before ...


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