Frequently Asked Questions about Marital Property in Illinois
Property division is one of the most frustrating and contentious aspects of a divorce, especially regarding marital property. Besides deciding who gets to keep the family home, you also need to consider other factors that can impact your and your family’s future.
Frequently Asked Questions about Marital Property in Illinois
A Hoffman Estates divorce attorney will tell you that marital property division in Illinois is far from simple. Here are some frequently asked questions about property division that can clarify the process for you:
Q. What is marital property?
A. All property acquired by couples in Illinois after the marriage and before a dissolution of marriage judgment is passed is presumed marital. This includes non-marital assets that are co-owned by the couple. There are certain exemptions – if a spouse got an inheritance or any property as a gift, it would remain their property, not marital property.
Even if your name is on a property doesn’t mean it is separate. Most property that you acquire during your marriage will be considered marital property. This includes assets you co-own with your spouse, such as a joint tenancy. Illinois is not a 50/50 state – all marital property is divided equitably, not equally.
Q. Are all assets acquired before a marriage considered non-marital?
A. Yes, but there are certain exemptions in case that property was acquired to support the marriage. For example, if you bought an apartment with your partner and both lived in it before getting married, that property can be considered marital.
Q. Who decides marital property division in an Illinois divorce case?
A. If you and your spouse disagree on marital asset division, the court will decide for you by categorizing marital and non-marital assets. These are assigned a monetary value before they are distributed equitably. In this case, the court chooses fair division, which will not be a 50/50 split. Marital misconduct such as adultery or abuse does not affect distribution.
Q. What is ‘separate property’ in property division?
A. In a divorce case, separate property refers to assets that one spouse owns, not the couple collectively. These are not subject to division and include property:
- Obtained by a spouse in the form of a legacy, descent, or gift.
- Obtained by a spouse in exchange for the property they received before they were married and in the form of a legacy, descent, or gift.
- Obtained by a spouse after legal separation.
- Excluded from the marital property category after mutual agreement between the parties.
- Any property awarded to a spouse from their ex as part of a judgment.
- Obtained by a spouse before they got married.
- Income from a non-marital property if it was generated without personal effort from a spouse.
Q. What does the court look into when deciding the fair distribution of marital property?
A. In most cases, the spouses are allowed to retain separate property. The only property that can be equitably distributed is marital property and obligations such as marital debt unless it is for dissipation. Some of the factors that the court looks into when deciding the fair distribution of assets include the following:
- The dissipation of marital and non-marital property.
- The contributions of each spouse to the attainment, increase, decrease, or preservation of the property. This also includes the contributions of the homemaker spouse in the family.
- Property value that is assigned to each spouse.
- The duration of the marriage.
- Rights and obligations that may result from a prior marriage.
- The specific economic health of both spouses when it comes to property division. This includes decisions on allotment of the family home or allowing the spouse with child custody to live there for a specific time.
- Each spouse’s income, health, age, employability, and vocational skills.
- The reasonable time given to each spouse to earn an income and obtain assets of their own in the future.
- Child custody arrangements.
- Spousal maintenance. The court may give a spouse the lion’s share of a property rather than spousal maintenance.
- Tax consequences of the property division on both spouses.
An experienced and dedicated Hoffman Estates divorce attorney can help you understand the implications of each of these points. At this point, you need sound legal advice to ensure you get the maximum number of assets so you can support yourself and your children.
Q. How does the court decide property division if the spouses did not keep non-marital assets separate?
A. Many spouses merge their separate and marital assets throughout their marriage. For instance, they may decide to move into a place they bought together as an unmarried couple and agree to pay mortgage/maintenance jointly. Similarly, a spouse may place their inheritance into a joint account they share with their partner.
While this is a common trend, it can have profound implications if the spouses decide to get a divorce. They can come to an agreement on how they want the property split via a prenuptial agreement. However, the court can decide for them if they cannot decide or haven’t drafted this agreement.
In this case, if the property is commingled, the contributed property is transmuted to the estate that is acquiring contributions. For instance, if a spouse contributed funds for the purchase of a home using separate assets that they own jointly with their partner, those funds will be treated as marital funds.
However, that doesn’t mean they lose everything. The contributed property comes with a right of reimbursement. So the contributing spouse may receive reimbursement when the couple divorces, but only if the contribution can be traced.
The court accepts only clear and valid evidence. The reimbursement is only provided if the spouse made a personal effort during the marriage to the separate property of their partner. So, for instance, if one spouse maintained a separate property owned by their spouse, the latter will need to reimburse the former for their effort.
Q. Is the marital home included in a pre or postnuptial agreement?
A prenuptial agreement is made before marriage, and a postnuptial agreement is made after it. Whether you choose one or the other, you can mutually agree to include the house in the agreement, but most couples don’t. A Hoffman Estates divorce attorney can detail the reasons. In any case, you will be bound to the terms of the agreement.
If you co-own other property with your spouse, such as a cabin, cottage, or vacation house, you can split these assets between you. For example, you can keep the family home, and your spouse can keep the cottage or other property of equal value. Or you can get a higher value property if you compromise on others.
Q. How can I afford the home I get during property division?
A. The mortgage of your marital home will probably be in your and your spouse’s name. If you get to keep the house, you will have to refinance it under your name only and have their name removed as well. Figure out whether you can get a new mortgage and if you can afford the maintenance costs on your own. This includes property taxes and utility costs.
Q. How can I ensure my children have a stable future post-divorce?
A. Divorce can devastate children, but they can recover faster if allowed to live in the same home. Make sure your children can continue living in the house in the years after the divorce. That way, they won’t have to shift schools or make any other significant adjustments during this difficult time. If your spouse cannot afford the house the court awarded them, you can agree to co-own it with them. A Hoffman Estates divorce attorney can help you draft an agreement that says when you can buy a share of the home’s equity from your spouse in the future.
Q. How can I ensure I get the assets I deserve and need post-divorce?
A. If you are going through a divorce and have concerns regarding marital asset division, contact a divorce attorney from the Law Office of Fedor Kozlov. They can answer any queries you may have and guide you through the process.
Contact the Law Office Of Fedor Kozlov For A Consultation Today!
Navigating through divorce, separation, and marital asset division can be physically and emotionally challenging. At the Law Office of Fedor Kozlov, we understand the emotional turmoil you and your family are going through and can help you get through the process with sound legal advice and solutions.
Contact us today for a consultation by dialing (847) 241-1299. During this time, you need a skilled and compassionate attorney who understands the unique challenges you are facing. Our attorneys can protect your family and aid in resolving legal conflicts that can otherwise derail your post-divorce life.
If you are the homemaker of the family, chances are you don’t have enough assets or vocational skills to support yourself and your children. We can help you get a fair share of your marital assets so that you can have a solid and sustainable future. Don’t delay. Contact us for a highly confidential meeting today and take the first steps for a secure life post-divorce.