Several important issues must be addressed in a divorce, from spousal and
child support to property division. These issues all have the potential
to be quite contentious due to the inherent complexities that come with
fairly dividing a couple’s life, especially when you take into account
the emotional weight of the situation. When it comes to dividing property,
there are two types, one of which ends up on the chopping block, while
the other is to be left untouched. They are known as marital property
and separate property.
Courts do not have authority over separate property, which is why the first
order of business in property division is to determine which assets and
debts are separate or marital. Generally, all property, assets, and debt
acquired throughout a marriage are considered marital property. If a piece
of property was acquired prior to the marriage, but the other spouse contributed
to an increase in its value, this increase would also be considered marital
property. Spouses can also convert separate property into marital property,
or vice versa, or specify property as marital or separate in a prenuptial
or postnuptial agreement. All marital property is equitably distributed
in the state of Illinois in the event of a divorce.
Some states differ in details, but separate property typically only includes:
- Property owned by either spouse prior to the marriage
- Inheritance received by either spouse prior to or during the marriage
- Gifts received by either spouse from a third party, such as a friend or
- Payments received for pain and suffering in a personal injury claim
All other property acquired during a marriage is typically considered marital
property, regardless of how the property is titled or which spouse owns
it. This means even assets such as your 401(k) or stock options will also
be equitably distributed as marital property, despite it being solely
in your name. If separate property mingles with marital property, it might
also be subject to division.
For example, if you re-title the condo you purchased while single to add
your spouse as a co-owner, this property might be considered marital property
in a divorce. If you deposited the inheritance you obtained from your
parents into a joint bank account, those funds might also be considered
marital property. This is often referred to as “commingling.”
Some spouses might do this intentionally while others commingle assets
without even realizing the consequences of such actions. If spouses are
unable to decide what belongs to whom, the decision will be left in the
hands of a judge who will determine whether any or all of the commingled
property was a gift to the marriage or if the original owner should be
reimbursed partially or fully.
How Does a Judge Decide?
If a judge must determine whether property is separate or marital, he or
she will consider several factors, which include:
- Prenuptial agreements
- The duration of the marriage
- The age, health, and station in life of each spouse
- Whether or not a spouse will receive spousal support
- The occupation, vocational skills, and employability of each spouse
- The value of property assigned to each spouse
- The economic circumstances of both spouses
- Contributions made to the acquisition, preservation, or increased value
of the marital property, including domestic duties
- The needs and liabilities of each spouse
- The obligations of either spouse from a prior marriage
- Custodial arrangements for children of the marriage
- The tax consequences of dividing the property
If a couple is able to reach an agreement on separate and marital property
without taking their case through litigation, they might stand a better
chance at obtaining an agreement that is favorable for both of their needs
and goals. With the assistance of your attorney and a mediator, you and
your spouse might be able to accomplish this.
Property Division Attorneys in Illinois
Asset distribution is a highly contested issue and heavily litigated aspect
of divorce. Finding a resolution to this can be time-consuming and slow
the entire divorce process down when spouses refuse to budge on a compromise.
If you are in need of representation for your divorce to assist you throughout
the property division process, contact the skilled and experienced attorneys
at Wakenight & Associates, P.C. Our Illinois attorneys are extremely
familiar with state divorce laws and will be able to help you protect
the possessions you value most while coordinating an asset distribution
plan that is both fair and beneficial for your entire family.
No two divorces are alike, and family situations make each distribution
dramatically different. However, some of the most common and important
assets in a divorce usually include cars or other motor vehicles, homes
or apartments, real estate, investments, financial assets, retirement
and saving accounts, intellectual property, insurance policies, and pets.
To ensure asset distribution is fair, you must disclose all of your assets
to the courts. Failing to do so might lead to serious consequences. You
could face legal punishment, be held in contempt of court, or jeopardize
your share of the marital assets.
It is crucial for you to seek the skilled and experienced assistance of
a property division attorney in Illinois to ensure your best interests
are protected and you do not make any costly mistakes along the way.
To speak with one of our distribution attorneys today, call us at (888)
351-2843 to schedule a consultation.