During a divorce, splitting marital property is often contentious. If you are wondering how to divide marital property in your divorce, below is essential information to be aware of. Contact our Crystal Lake property division lawyers at Bruning & Associates today if you have questions.
Illinois Is Not A Community Property State
In a community property state, all assets that both spouses acquire during the union are assumed to be the property of both. This is assumed regardless of whose name is on the property title, how the assets were purchased, and which partner earned money to buy the asset.
Unlike many states, Illinois is not a community property state. This means that any assets and money you acquired during the union are not divisible in a divorce. Instead, the court will divide the property into marital and non-martial parts during the divorce. Therefore, one of the most important questions to answer is which is marital and non-marital property. In Illinois, the non-marital property includes:
- Property acquired by one of the spouses through inheritance or as a gift.
- Property that one spouse acquired after the judge granted your legal separation.
- Property that is excluded from your marital state in a prenuptial agreement.
- Property that was awarded to one of the spouses after the court took it from the other.
What Is Marital Property?
Marital property is that either spouse acquired marital funds during the marriage. In most situations, it does not matter how the property is titled because divorce is not considered during the marriage.
Courts in Illinois divide marital property equitably, but this does not necessarily mean 50/50 (but it can). Instead, marital property is distributed based on various factors specific to the marriage. Some of these factors include what each spouse contributed to the union and what each spouse’s financial opportunities are after the marriage. Some of the assets and liabilities that are considered marital property in an Illinois divorce are:
- Real estate
- Furniture
- Appliances
- Cars
- Investment accounts
- Stocks and options
- Pensions
- Retirement plans
Also, if one of the spouses stayed home to tend to the house and children, these are considered homemakers’ contributions. They are considered equally important to the other spouse’s financial contributions. However, how much a homemaker’s contributions are considered in the divorce depends on many things. If there were no children at home and the spouse did not do a lot to maintain the house, citing the homemaker’s contributions during the divorce may be a weak argument.
How Property Is Divided In An Illinois Divorce
The first step to dividing property in an Illinois divorce is to identify everything that is marital property. Marital property is everything that either partner acquired during the marriage. For the most part, this step is like how it works in a community property state; marital property and community property definitions are similar. However, differences arise in how the Illinois family court will act when the marital property is identified.
So, the court will decide what is marital property first. Then, it will consider these factors before dividing the marital assets:
- What were each spouse’s contributions in acquiring each asset?
- Did either spouse dissipate marital assets unnecessarily before the divorce?
- What is the value of each person’s non-marital property?
- How long was the marriage?
- What is the financial situation for each partner?
- Does either spouse have financial obligations from a previous marriage?
- The age and health of each spouse.
- The employment prospects for each person.
- Effects of any prenuptial agreements in effect.
The court can consider any or all of these factors. However, it cannot consider the fault of either spouse for the divorce when dividing marital property. If one spouse was unfaithful to the other, that is irrelevant to Illinois divorce proceedings.
Who Will Get The House?
The marital home is often the most significant asset that most couples own. Therefore, it is common to wonder who will get the house in the divorce. The decision about the primary residence depends on how the factors above play out. However, equity in the home can only be divided if the house is sold, so the court has limited options.
If you have enough assets to buy out your spouse’s interest, this could be a good choice. For example, you might get more personal property and retirement accounts if your wife gets the home.
The other common option is to simply sell the home. This may be the best path if the couple does not have significant assets other than their primary residence.
Commingling Of Assets
A frequent dilemma in property division is commingling and transmuting assets. Spouses may intentionally or unintentionally commingle their assets during the marriage. This can significantly complicate the divorce, making distinguishing between marital and non-marital property difficult.
For example, you could put $25,000 from a property transaction before the marriage into a joint bank account. Your spouse may have used some funds to pay for college loans or credit cards. This commingling of assets could make that marital money property.
Commingling of assets also can work the opposite way. For example, suppose you owned a house before the marriage but are still paying the mortgage. Once you were married, you both moved into the home, and the marital estate paid off the home loan. The marital funds were transmuted into the non-marital estate of the partner whose name is on the property title. However, the marriage still has a right to be reimbursed for those payments.
Commingling assets almost always complicates an Illinois divorce. But an experienced Crystal Lake property division attorney knows how to determine marital and non-marital property. In addition, they can help guide you through dividing assets and explaining your legal options.
Contact a Crystal Lake Property Division Lawyer
Are you having disagreements with your spouse about how to divide marital property in a divorce? The Crystal Lake property division lawyers Bruning & Associates know how to stand up for your clients in property division disputes. Our attorneys also work with clients in Schaumburg, Scottsdale, AZ, Warrensville, Naperville, Lake Forest, and Saint Charles offices. Please contact our Crystal Lake property division lawyer today at (815) 415-3000 for more information.
