Splitting marital property can be one of the more difficult aspects of an Illinois divorce, and what qualifies as marital and non-marital property can be misunderstood. Below is essential information to know about community property in Illinois and how property division is performed. Please contact our divorce lawyers in Crystal Lake at Bruning & Associates, P.C. if you have additional questions.
Illinois Is Not A Community Property State
In a community property state, all the assets the spouses acquire during the marriage are considered joint property. This is the case regardless of to whom the property or account is titled, how the property was bought, and who made the money to buy it.
However, Illinois is not a community property state. Instead, the judge will determine marital and non-marital property during divorce. In Illinois, non-marital property consists of the following:
- Property that a spouse acquired through a gift or inheritance.
- Property that a spouse acquired after the family court granted the legal separation.
- Property not included in the marital estate as noted in a prenuptial agreement.
- Property that the court took from one spouse and awarded to the other.
Marital Property In Illinois
In Illinois, marital property is what either spouse bought with marital funds during the marriage. Usually, it is irrelevant how the property or account is titled.
Illinois courts divide marital property equitably during a divorce, but this does not necessarily mean 50/50. Rather, marital property is distributed to each party based on many factors. Some factors include what the spouse contributed to the union and their financial prospects after the marriage. Some assets and liabilities that are deemed marital property in Illinois are:
- Real estate
- Investment accounts
- Stocks and options
- Retirement plans
Also, if you stayed home to care for the home and children, these are called homemakers’ contributions. The court will consider homemakers’ contributions equally crucial to financial contributions during the marriage. But the amount of your homemaker’s contributions depends on many factors in the marriage. For instance, if no children were in the home during the marriage, your homemaker’s contributions may not be as significant for the purposes of the divorce agreement.
Property Division Principles In An Illinois Divorce
Dividing property during a divorce means first determining what is marital property and what is not. Marital property includes all assets that either spouse acquired while they were married. The court will decide which is marital property and then will divide it based on these and other factors:
- What were the spouse’s contributions to acquire the asset?
- Did one of the spouses dissipate marital assets before or during the divorce?
- What is the value of the non-marital property of each spouse?
- How long did the marriage last?
- What is the current and potential financial situation of each spouse?
- Does either party have financial obligations from a previous marriage?
- What is the health and age of each spouse?
- What are the employment prospects of each?
- Are there any prenuptial agreements in effect?
The family court can consider these and other factors but cannot consider fault when deciding who gets what. For example, if your spouse committed adultery, this does not matter for the purposes of property division.
Who Gets The House In A Divorce?
For most people, the marital home is their most valuable asset, so there are frequent disagreements about who gets the home when a couple divorces. 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 who gets the home depends largely on the factors that we mentioned above. But home equity may only be divided when the home is sold, so there are limited options.
One way to deal with the marital home is to buy out your ex’s interest in the property. For instance, you could be awarded more 401(k) funds or other retirement assets if your ex-spouse gets the house in the divorce. Or, you can just sell the home and split the proceeds, which may be the best decision if you do not have other significant assets.
Commingling Of Assets
A common problem with property division in a divorce is the commingling of assets. Spouses often commingle their assets when married which can complicate the divorce.
When a judge cannot easily determine marital and non-marital property, you could wind up with fewer assets than you deserve in the divorce.
Suppose you placed $30,000 from a real estate transaction into a joint bank account before you were married. Your ex may have used some of the money to buy a car or pay credit cards. When assets are commingled in this way, they could become marital property.
There are other ways that commingling of assets can occur as well. Suppose you owned a home before you were married but still owe money on the mortgage. After you were married, both of you moved into the residence and paid off the mortgage. This could also lead to the commingling of assets, and one party may have the right to be reimbursed for the payments.
Commingling assets will usually complicate a divorce, but a skilled Crystal Lake divorce attorney can determine which is marital and non-marital property. They can also advise you on asset division and explain your legal options.
What About Retirement Accounts?
Many people do not understand how retirement accounts are handled in an Illinois divorce and believe they should not be considered non-marital property. However, if the retirement account was added during your marriage, it will be considered marital property. Also, regarding other investments, even if only one spouse invested the money, it is marital property. However, if the retirement or investment accounts predate the marriage, they will likely not be divided in the divorce.
Contact Our Divorce Lawyers In Crystal Lake Today
Are you having arguments with your spouse about property division in a divorce? Our attorneys can assist you, so please contact our divorce lawyers in Crystal Lake at Bruning & Associates, P.C. at (815) 455-3000.