Chicago Tribune

JUDGE PUTS LEMAK DIVORCE ON FAST TRACK

By Janan Hanna, Tribune Staff Writer.
Friday, September 24, 1999
The Chicago Tribune

David Lemak of Naperville, who has been seeking a speedy divorce since his estranged wife, Marilyn, was accused of murdering the couple's three young children, might get his wish as early as next month.

After hearing arguments Thursday, DuPage Circuit Judge John Elsner granted David Lemak's request that the marriage be dissolved as soon as possible and that questions about division of marital assets be postponed.

Elsner said "appropriate circumstances exist" to warrant the rarely granted two-phase divorce, known as bifurcation.

The judge scheduled a hearing for Oct. 7, when he will consider the grounds for divorce and determine whether the marriage should be dissolved. Lawyers for David and Marilyn Lemak said they expect that the couple will be divorced on that date.

Any money David Lemak earns after a divorce is granted will be his own and will not be considered as joint-marital assets.

Marilyn Lemak is in DuPage County Jail awaiting trial on charges that she murdered the couple's children in their home on March 4.

The couple were in the process of getting a divorce when the children were killed.

David Lemak subsequently requested a speedy divorce and indicated in a court motion that he believed his wife should be deprived of any marital assets and money for attorneys fees.

Elsner did not rule on whether Marilyn Lemak was entitled to marital assets. He scheduled a hearing on that question for early next year.

David Lemak appeared at the court hearing Thursday, sitting somberly next to his lawyer, Anita Donath. He did not speak during or after the hearing. "These are certainly extraordinary circumstances," Donath said. Donath also noted that Marilyn Lemak is the beneficiary of a $500,000 life insurance trust set up by the couple and that as long as the two remain married, she would inherit that trust.

In addition, Donath argued that a delay in considering how the marital assets will be divided is necessary because no one knows what Marilyn Lemak's financial circumstances or needs will be.

"If Marilyn Lemak is sentenced to life imprisonment, that is relevant to determining her needs," Donath said.

Marilyn Lemak's divorce lawyer, Dan Kuhn, reminded the judge that his client is presumed innocent.

Kuhn argued that while his client, too, wanted a speedy resolution to the divorce case, he believed the divorce should be granted only after questions about finances are determined.

"In every single case of divorce, no one knows what's going to happen in the future," said Kuhn. "The court can reasonably determine assets based on the parties current circumstances."

Even if his client is found guilty, Kuhn continued, "She's nonetheless entitled to marital assets."

In a separate action, Kuhn filed a motion requesting that proceeds from the sale of the family's historic home be placed in escrow.

The home is under contract. The home was listed for $929,000, and a source who asked not to be identified said it the contract was for $875,000. The sale is scheduled for closing on Monday, Kuhn said in his motion.

Marilyn Lemak's signature is not on the sales contract, Kuhn noted in his motion, and unless the proceeds are placed in escrow, the proceeds could be spent without her consent.

Also filed Thursday was a motion seeking to bar from testimony in the divorce proceeding any discussion of Marilyn Lemak's alleged culpability in the children's deaths.

Kuhn said the crime was irrelevant, and he cited a provision of the Illinois Marriage and Dissolution Act, which states that the court shall "divide the marital property without regard to marital misconduct." After the court hearing, Kuhn said he had spoken with Marilyn Lemak on Wednesday evening.

"She looks generally good, but frail," Kuhn said. "She keeps a stiff upper lip."

Kuhn said Marilyn Lemak told him that she is being treated well in jail. After spending a few days in an area of the jail where she had regular contact with other prisoners, Lemak recently requested that she be returned to an isolated area of the jail.

Asked about that decision, Kuhn said, "She felt uneasy about being out of her cell. She said she couldn't explain it."

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