In re Marriage of McLean, 2025 IL App (5th) 250094

Summary

Case Summary: In re Marriage of McLean, 2025 IL App (5th) 250094 - Here is a 2-sentence summary of the article: The Fifth District Appellate Court's recent decision in In re Marriage of McLean highlights the importance of building comprehensive evidentiary records on retirement account division, as trial courts that fail to do so risk having their judgments vacated and remanded for recalculation. The case provides guidance on how attorneys can "McLean-proof" their retirement divisions by ensuring they have complete and accurate documentation, including valuation dates, contribution histories, and employer records, in order to avoid appellate vulnerability and maximize leverage in settlement negotiations.

The opposing counsel is already on the back foot—they just don't know it yet. When the Fifth District Appellate Court handed down In re Marriage of McLean last month, it delivered a masterclass in what happens when attorneys fail to build bulletproof evidentiary records on retirement account division. Your opposition's sloppy documentation practices? That's your opening.

This case should be required reading for every family law practitioner in Illinois handling high-asset divorces. The appellate court didn't just identify errors—it exposed the systematic failures that lead to vacated judgments and costly remands. Let me break down exactly what went wrong, why it matters for your practice, and how to weaponize this precedent in your next contested property division.

The McLean Framework: Where the Trial Court Failed

The judge already knows that dividing retirement accounts requires surgical precision. McLean involved two 401(k) accounts where the trial court's calculation of marital versus nonmarital portions was so flawed that the Fifth District had no choice but to vacate and remand. The specific failures centered on the court's handling of:


Post-separation contributions and their proper attribution
Pre-marital contribution tracing
Employer match calculations
Rollover treatment
Passive gains allocation


The appellate court emphasized that trial courts must explain their calculation methodology—whether using a coverture fraction or equivalent approach—and that the computation must be supported by the evidentiary record. Vague findings don't survive appellate scrutiny.

This is where strategic superiority separates competent practitioners from the rest. If opposing counsel can't produce contribution histories, employer records, and clear valuation date documentation, their client's position on retirement division is compromised before opening statements.

Building the Evidentiary Record That Survives Appeal

Stop treating retirement account discovery as a checkbox exercise. McLean demands comprehensive documentation:

Essential Discovery Targets


Complete account statements from account inception through the valuation date—not just the marriage period
Employer contribution records showing match formulas, vesting schedules, and timing
Rollover documentation tracing the source and character of any transferred funds
Employment records establishing dates of hire, plan enrollment, and compensation history
Plan summary documents detailing contribution limits, matching formulas, and investment options


When opposing counsel produces incomplete records, that's not their oversight—that's your leverage. Document the deficiency, file targeted motions to compel, and be prepared to argue adverse inference at trial.

The Valuation Date Agreement

Secure a stipulated valuation date early in litigation. The McLean court's analysis underscores that disputes about when to value retirement assets create cascading calculation problems. Lock this down in your case management conference or preliminary discovery agreements.

The Coverture Fraction: Precision Required

Illinois courts regularly apply the coverture fraction to separate marital from nonmarital retirement interests. The formula appears straightforward:

Marital Portion = Total Account Value × (Months of Marriage During Plan Participation ÷ Total Months of Plan Participation)

But McLean reveals the complexity lurking beneath this simplicity. The fraction must account for:


Periods of non-contribution during the marriage
Contribution rate changes
Passive appreciation on nonmarital contributions
Active versus passive growth distinctions


If your expert or the court applies a generic coverture fraction without addressing these variables, you've created appellate vulnerability. Demand explicit findings on each component.

Parenting Allocation: The Deference Wall Stands

The McLean court affirmed the trial court's parental responsibility and parenting time allocation, reinforcing the substantial deference appellate courts extend to trial judges on custody determinations. This wasn't a close call—despite contested facts about temporary order compliance, psychologist recommendations, school concerns, and inter-party incidents.

The takeaway for practitioners: if you're planning to appeal a parenting allocation, understand the wall you're climbing. The "manifest weight of the evidence" and "abuse of discretion" standards are designed to be difficult to overcome. Appellate courts consistently defer to trial judges who observed witness credibility firsthand.

Preserving the Record for Parenting Appeals

If you must appeal a parenting determination, your trial record needs:


Explicit testimony on each statutory best-interest factor under 750 ILCS 5/602.5 and 602.7
Expert evaluator reports admitted into evidence with testimony subject to cross-examination
School and counselor records documenting the children's adjustment and any concerns
Specific incident documentation with dates, witnesses, and contemporaneous records
Clear objections preserved on the record to any evidentiary rulings you intend to challenge


The McLean appellant raised compliance issues with temporary orders and contested the weight given to various professional recommendations. None of it moved the needle. The trial court's credibility assessments and weighing of evidence stood.

The Cyber-Discovery Angle: Digital Records as Leverage

Here's where family law intersects with digital forensics in ways most practitioners ignore. Retirement account documentation increasingly exists in digital formats—employer portals, plan administrator databases, electronic statements. When opposing counsel claims records are "unavailable," that's often a technical competence failure, not a legitimate barrier.

Consider these discovery pressure points:


Employer HR portal access—contribution histories are typically available through employee self-service systems
Plan administrator records—ERISA requires plans to maintain and produce participant records upon request
Email and document retention—enrollment confirmations, beneficiary designations, and contribution change notices often exist in email archives
Financial planning software—many high-net-worth individuals use aggregation tools that maintain historical account data


When the other side's digital negligence creates discovery gaps, document it. That negligence becomes leverage in settlement negotiations and grounds for adverse inference arguments at trial.

QDRO Drafting: The Post-Judgment Minefield

McLean doesn't directly address Qualified Domestic Relations Order issues, but the remand creates a cautionary tale. When the appellate court vacates a retirement division and remands for recalculation, any QDRO drafted based on the original judgment becomes worthless. The parties face additional legal fees, plan administrator resubmission costs, and potential tax complications if distributions occurred before the appeal concluded.

Protect your client by:


Building appeal-proof findings into the original judgment
Delaying QDRO submission when appeal rights remain live and the division methodology is vulnerable
Including indemnification provisions for tax consequences if the division is later modified


Strategic Implications for Settlement Negotiations

The McLean decision gives you ammunition in settlement conferences. When opposing counsel's retirement account documentation is incomplete or their proposed division methodology is suspect, cite this case directly:

"Your proposed 401(k) division can't survive appellate review under McLean. The Fifth District just vacated a judgment for exactly this type of calculation error. We can either settle this with a methodology that will hold up, or we can litigate it, win, and pursue fees when your client's position fails."

That's not bluster—that's precedent-backed pressure. Use it.

The Checklist: McLean-Proofing Your Retirement Division

Before you submit proposed findings on retirement account division, verify:


Valuation date is stipulated or clearly established by court order
Each account has complete contribution history from inception
Nonmarital contributions are traced with documentary support
Employer match attribution is calculated and documented
Rollovers are traced to source with character preserved
Passive appreciation on nonmarital portions is separately calculated
The calculation methodology (coverture fraction or alternative) is explicitly stated
Mathematical calculations are shown, not just conclusions
Expert testimony or stipulations support complex valuations


If any element is missing, you've created appellate exposure. Fix it before judgment entry.

The Bottom Line

In re Marriage of McLean isn't just another appellate decision—it's a roadmap for attacking weak retirement division evidence and a warning about the documentation standards Illinois courts demand. The Fifth District made clear that trial courts must show their work, and practitioners who fail to build complete evidentiary records will watch their judgments get vacated.

Your opposition's documentation failures are your strategic advantage. Their incomplete discovery responses, their missing contribution histories, their vague valuation methodologies—all of it becomes leverage when you understand how to exploit it.

The question isn't whether this precedent will affect your next high-asset divorce. It's whether you'll be the attorney using it as a weapon or the one explaining to your client why the judgment just got vacated.

If you're facing a complex property division involving substantial retirement assets, or if you're concerned about the methodology opposing counsel is proposing, book a strategy consultation now. The other side is already making mistakes—let's make sure you're positioned to capitalize on every one of them.

Full Opinion (PDF): Download the full opinion

Written by Jonathan D. Steele

Chicago divorce attorney with cybersecurity certifications (Security+, CEH, ISC2). Illinois Super Lawyers Rising Star 2016-2025.

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