How Is Marital And Non-Marital Property Decided In An Illinois Divorce?

marital propertyMarriage gives people the opportunity to build a life together with the person they love. From buying a home, a new car to choosing furniture that suits their lifestyle, couples make several critical financial decisions during their marriage. So when they decide to go their separate ways and get a divorce, that property has to be divided.

Illinois Is an Equitable Distribution State

Since Illinois is an equitable distribution state, the property between divorcing spouses is divided ‘fairly’ rather than equally. This can lead to unequal distribution since the court will look at each of the spouse’s earning ability and their ability to accumulate assets in the future before a ruling.

While an equitable ruling can seem unfair for the spouse who gets less during property distribution post-divorce, Illinois courts are adamant in ensuring division is done fairly and justly. The judgment is mostly based on the circumstances surrounding the dissolution of the marriage.

Illinois recognizes ‘no fault’ divorces which means the courts do not blame one spouse over the other for causing a divorce, for, say, having an affair. This means that while it may seem unfair, the victimized spouse may not be entitled to more marital assets than their cheating spouse.

On the other hand, Illinois courts do recognize financial misconduct and award victimized spouses accordingly. For example, if the cheating spouse gave his mistress gifts using his family’s money, he can be ordered to reimburse those funds to his spouse.

In this case, the court determines that the money was not being used for the family’s benefit and is thus owed to the divorcing spouse.

Marital vs. Non-Marital Property

The first step that the court takes when it comes to dividing property during a divorce is distinguishing marital from non-marital assets.

Marital property includes most of the assets and debts that the divorcing couple acquire during their marriage. This includes furniture, vehicles, household appliances, the house, and even checking accounts. This also includes all of the income you and your spouse earned during your marriage unless you have a pre or post-nuptial agreement that says otherwise. Arlington Heights divorce lawyers can help you make accurate distinctions.

Non-marital property or separate property includes all of the items that the spouses purchased before their marriage. In other words, these belong to the spouse who originally acquired them. Some examples of non-marital property include gifts, an inheritance, cars, furniture, retirement account value pre-marriage, property acquired by a spouse after legal separation, and items not mentioned in a prenuptial agreement.

If a non-marital asset generates income during the marriage, it will still be considered non-marital property. However, if the other spouse made contributions to increase that value, they may be entitled to reimbursement.

In some cases, non-marital property can be converted into marital property or vice versa via a written agreement. For example, a spouse can change a separate asset into marital property by changing the property’s title from ‘individual’ to ‘joint’ ownership. Then the court will presume that the property was meant as a gift from one spouse to another.

Marital and separate property can also be mixed through a process called ‘commingling.’ In this case, divorcing couples decide to merge their separate assets. Still, most do so without considering the consequences of that decision.

For instance, a bank account opened before the marriage can be considered marital property if the other spouse made deposits during the marriage. Similarly, a spouse’s house before the marriage can be considered a marital asset if both spouses pay the mortgage and expenses.

If the spouses cannot decide on property division, the court will decide for them. In this case, the judge will have to decide whether the merged assets were marital gifts or whether the original owner should be reimbursed for paying for them. This situation can become quite complex, and you may need Arlington Heights divorce lawyers to determine a fair division that protects your rights and interests.

Why Property Division Is Far From Simple

Only marital property is divisible during an Illinois court as per the law. However, if you believe a non-marital property is marital property, you will need to prove the veracity of your claim.

Your Arlington Heights divorce lawyers will recommend that you trace the assets from their source to determine that they are non-marital or marital. If you can find evidence that the source of an asset came from an inheritance or a gift given before your wedding, you may be able to convince the court that you deserve to be reimbursed for it.

Make sure you have the appropriate documents to prove your claim. This includes trusts, wills and tax returns, and documents that can establish when your spouse received an inheritance. Next, you need to prove that it is separate and not part of marital funds, such as a joint bank account.

If this happens, the separate asset can be considered marital property, which can be distributed between the spouses by the court.

On the other hand, even if funds remained in a marital account briefly, it will still be considered non-marital. Similarly, there are some ways that a spouse can ensure that they can keep property they believe is rightfully theirs during a property division dispute.

To increase their chances of ensuring this, they can maintain detailed online records, save relevant written documentation such as account statements and receipts or even hire financial professionals such as forensic accountants to prove ownership.

What Illinois Courts Consider During Property Division

According to the Illinois Marriage and Dissolution of Marriage Act, courts in Illinois can determine asset division based on the following:

  • Parental responsibilities such as child custody.
  • Valid post or pre-nuptial agreements.
  • Spousal maintenance provisions, i.e., alimony.
  • The duration of the marriage. This factor has two purposes. It prevents gold diggers from marrying millionaires only to leave them the next day and collecting their share of the marital wealth.
  • The contributions of each spouse to the marital estate. This includes non-financial contributions such as a stay-at-home parent or a homemaker may make.
  • The age, employability, health, and financial circumstances of both spouses.
  • Whether any of the divorcing spouses have previous spousal maintenance or child support obligations.
  • Anticipated tax implications that may result from the property division.
  • Claims of financial fraud made by either of the spouses.
  • Timing, homing and economic circumstances surrounding the children. In some cases, Illinois courts can allocate more property to less financially stable spouses to ensure security post-divorce. This can be the case if one of the spouses doesn’t have the qualifications to secure a well-paying job that can support them after the split from their spouse.
  • The timing of the property division. Some assets may be time-sensitive, such as delayed income streams and stocks.
  • Illinois law also ensures that courts keep the children of disputing couples in mind when the time comes to decide the future of a marital residence. Keeping them in their former marital home is a priority so that they can remain close to their friends and the school they go to. Some couples agree to keep them in the home for a set number of years after the children graduate from high school.

Only valid pre or post-nuptial agreements are considered during property division in a divorce case, but several reasons can bring their validity into question. If you believe that is the case, you should hire experienced Arlington Heights divorce lawyers right away. You may be eligible for a bigger piece of the pie than you think.

Contact the Law Office of Fedor Kozlov for a Consultation

Do not allow market conditions to determine your future. If you are holding out on divorce because the stock market is not in your favor and you can lose out on your share, you are making yourself, and your children suffer. The Illinois divorce lawyers at The Law Office of Fedor Kozlov, P.C. are highly proficient in taking care of complex divorce proceedings such as this.

Get in touch with one of their divorce lawyers to make sense of your options during your divorce proceedings. This includes determining marital and non-marital property so you do not miss out on the assets that should be legally yours.

We focus exclusively on family law, so you know that we have the experience to take care of all kinds of complex divorce issues. To get a consultation, all you need to do is dial (847) 241-1299, and one of our dedicated lawyers will evaluate all of the legal options you may not even know you have. Our success is based on a friendly and straightforward approach that always puts our clients at ease.

We understand that each case is unique when it comes to divorce based on the circumstances that lead to it. Our compassionate and dedicated attorneys will ensure you get personalized representation and legal counsel that can not only set your mind at ease but also establish a foundation for a happier future post-divorce. Get in touch with us today and find out how we can help you.

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