In re Marriage of Raine

Overview

In In re Marriage of Raine, 2026 IL App (3d) 250121, the Third District affirmed a turnover order requiring funds held in the respondent's Jackson National Life variable annuity to be transferred to satisfy over $126,000 in maintenance arrearages and accrued interest. The court held that, although retirement assets are generally exempt from attachment under 735 ILCS 5/12-1006, section 15 of the Income Withholding for Support Act (750 ILCS 28/15) creates a clear statutory exception for child support and maintenance obligations—including arrearages and interest—that overrides the exemption.

Key Facts

• Parties married in 1980; dissolution judgment entered February 2009 ordering Talmage to pay $12,000/month maintenance, later reduced to $5,000/month by agreed order in November 2013.
• Talmage repeatedly failed to pay maintenance; successive agreed judgments documented growing arrearages ($191,000 in 2018; $126,000 outstanding by 2024 plus $96,752.50 in interest).
• In January 2022, Talmage opened a variable annuity account with Jackson National Life Insurance Company holding $137,381.68.
• Talmage suffered a career-ending stroke in November 2022.
• Trial court found Talmage in indirect civil contempt for willful nonpayment but found no fraudulent intent in opening the annuity.
• Cynthia served a third-party citation to discover assets on Jackson Life and filed an amended petition for turnover of the annuity funds.

Procedural History

Circuit Court of Du Page County (18th Judicial Circuit), No. 08-D-1207, Judge Leah D. Setzen presiding. After granting Cynthia's petition for rule to show cause and finding Talmage in contempt (April 2024), the trial court granted Cynthia's amended turnover petition in January 2025 (written order February 2025). Talmage filed a timely notice of appeal on March 4, 2025. The case was heard in the Third District (Appeal No. 3-25-0121), with opinion filed July 30, 2026.

Holdings

1. Primary holding (de novo review): Section 15 of the Income Withholding for Support Act creates a statutory exception to the retirement-asset exemption in 735 ILCS 5/12-1006, permitting attachment of annuity funds to satisfy maintenance arrearages and interest.
2. The court rejected the argument that "income" under section 15(d) applies only to periodic distributions already paid out, holding that undistributed funds held within a retirement annuity retain their character as "annuity, pension, and retirement benefits" subject to the exception.
3. The court rejected the argument that child support and maintenance should be treated differently, finding both are expressly included in the definition of "order for support" under section 15(a).

Legal Principles

• 735 ILCS 5/12-1006(a) — general exemption for retirement plan assets from judgment and seizure.
• 750 ILCS 28/15(a), (b), (d) — defines "order for support" to include maintenance arrearages with interest; defines "income" to include annuity, pension, and retirement benefits; states other exemption laws "shall not apply."
• 750 ILCS 5/706.1 — subjects both child support and maintenance orders to the Withholding Act.
• Controlling precedent: Jakubik v. Jakubik, 208 Ill. App. 3d 119 (1991); In re Marriage of Murphy, 338 Ill. App. 3d 1095 (2003); In re Marriage of Takata, 383 Ill. App. 3d 782 (2008); In re Marriage of Altman, 2016 IL App (1st) 143076; In re Hernandez, 2020 IL 124661 (supreme court recognizing the exception).
• Standard of review: De novo (statutory construction presenting pure legal question).

Practical Implications

• Maintenance arrearages can reach retirement assets: Practitioners seeking to collect unpaid maintenance should use third-party citations and turnover petitions targeting retirement accounts, citing section 15 of the Withholding Act.
• No need to prove fraud: The exception applies by operation of statute; a showing of fraudulent conversion of assets is unnecessary (though it may serve as an alternative theory).
• Undistributed funds are reachable: The court rejected the asset-vs.-income distinction—funds sitting in an annuity account need not be in pay status to be subject to turnover.
• For respondents: The only viable defense would be to challenge whether the underlying obligation qualifies as "support" under section 15(a), or to seek timely modification of support obligations before arrearages accrue.
• Attorney fees excluded: Per Jakubik, this exception does not extend to attorney fees, even those incurred pursuing support—a potential limitation on turnover petitions.

Limitations/Caveats

• This is a published opinion (2026 IL App (3d) 250121), not a Rule 23 order, and carries full precedential value.
• The court's discussion acknowledging that section 15's text has "some wiggle room for argument" is dicta; the binding holding is that the exception applies based on over 35 years of consistent case law.
• The trial court's finding of no fraudulent intent in opening the annuity was not disturbed on appeal; the fraud theory was not needed and was not part of the holding.
• The opinion does not address whether the exception would apply to property settlement obligations (as distinct from maintenance), leaving that question open.