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Property Division in Divorce

Property Division in Divorce

Posted in Divorce, Family Law

It’s always best when divorcing spouses can agree on how to divide their property, but if they cannot agree, the Circuit Court will have to divide the marital estate.  Illinois is an equitable distribution state, which means your property may not be divided equally.  Instead, a judge will divide marital property in what is considered to be a fair and just manner after evaluating your individual circumstances. In the meanwhile, once a spouse files for divorce, the court automatically issues a court order prohibiting either spouse from disposing of property without the permission of the court or the other spouse.

Divorce, dividing property, and other family law issues are emotionally charged issues that are life-changing for everyone involved.  In order to avoid making costly mistakes, it makes sense to consult an experienced family law attorney to help you through this difficult time.

The seasoned and compassionate Illinois family law attorneys at Wolfe & Stec, Ltd. always focus on our clients’ needs and feelings, and we work to clarify and resolve the issues they are facing in the most effective and efficient manner. We offer a free consultation to help you find the best solution for your individual situation.  Call us today for your free consultation at 630-305-0222 or contact our team online.

What is Marital Property?

Marital property consists of all assets you or your spouse acquired during the marriage and before your divorce judgment.  It also includes non-marital property that has been transferred into co-ownership and commingled.

This is the only property Illinois courts have authority to divide in divorce. Therefore, the court must first categorize your property as either marital or separate property and then assign a monetary value to the marital property and debt.  After that, it can distribute the marital assets in an equitable fashion.

What is Separate Property?

Separate or non-marital property is that which is owned solely by one spouse or the other, and it cannot be divided by the courts in a divorce.

Examples include:

  • property acquired before the marriage or by gift or inheritance, or acquired in exchange for this property
  • property acquired by a spouse after a judgment of legal separation
  • property excluded by a prenuptial agreement or other valid agreement
  • the increase in value of any non-marital property during the marriage, or income from any non-marital property, if the income is not attributable to personal effort of a spouse.

What if Property is Commingled?

When spouses have mixed or commingled their assets, it can be difficult to decide whether property is marital or separate.

Common examples of commingling include putting money earned before your marriage into a joint account, paying the mortgage and maintenance jointly on a house owned by one spouse before marriage, or putting inherited money into a joint bank account.  Unless these funds can be traced to their original separate source, the chances are the court will find the entire account is marital property and will divide it accordingly.

If the funds were used to pay family expenses, it is considered as a gift to the marriage and is known as transmutation. Even if you can trace transmuted funds to a separate source, they will be looked at as converted into marital property.

Additional Reading:  Why You Need An Attorney For Your Divorce

What is Equitable Distribution?

Equitable distribution means the court will divide property between you and your spouse in a manner that is fair and just, though not necessarily equal. To do this, Illinois law considers factors that include:

  • the contribution of each spouse to the increase or decrease in value of property
  • the contribution of a spouse as a homemaker or to the family unit
  • the value of the property assigned to each spouse
  • the length of the marriage
  • the economic circumstances of each spouse, including the desirability of awarding the family home to the spouse having custody of the children
  • obligations from a prior marriage
  • the age, health, occupation, and skills of the parties
  • the custody provisions for children and whether there is to be alimony
  • any prenuptial agreement
  • the tax consequences of the property division
  • any dissipation, wasting or hiding of assets
  • the opportunity to earn income and acquire assets in the future.

Note that in Illinois marital misconduct, such as having an affair, does not affect property division during divorce. However, if your spouse engaged in financial misconduct that wasted marital assets, you may be entitled to reimbursement.

What Happens to the Marital Home?

Equity in the marital home is often one of the biggest assets of a marriage. Equity means the current market value of the house at the time of separation, less any debts or liens against it.

Dividing home equity may mean:

  • selling the home and dividing the proceeds
  • having one spouse refinance the home and buy out the other
  • letting one spouse remain in the home for a period of time and then buy out the other spouse or sell the home and divide the proceeds.

Contact Us For Help

Laws relating to division of property can be difficult to interpret, and making a mistake could mean returning to court and costly battles that adversely affect you and your children. Fortunately, there is help available, and you may find comfort in knowing a lawyer is on your side. The seasoned Illinois family law attorneys at Wolfe & Stec handle all divorce cases with sensitivity, respect, and discretion.

At Wolfe & Stec, Ltd., we made our reputation one client at a time, and we put every ounce of our ability into every case. There are no ready-made solutions in divorce and family law – every case needs to be considered on its own merits. Our lawyers take the time to delve deeply into the problem and to understand your goals and concerns. Then we develop a legal strategy designed to achieve those objectives and allow you to keep as many marital assets as possible.

There is no charge for the first consultation. Delaying can only complicate your situation and make matters worse. Call us today for your free consultation at 630-305-0222 or contact our team online.



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