Tag Archives: marital property

Yours, Mine, or Ours? Identifying Marital Property in Divorce

marital property, Illinois asset division attorneysWhen two people get married, they often choose to combine all of their financial interests. They may have joint checking and savings accounts, put both names on loan documents and titles, and generally consult with one another about major purchases. Other couples may elect to keep things more separate. These couples may have joint accounts to be used for household bills and other expenses, but they may also have investments or property held in their own names. Whichever option a couple chooses, a divorce may leave more property subject to division than many people realize.

What the Law Says

If a divorcing couple is able to reach a reasonable agreement regarding the division of property, the court will approve the agreement without much a problem in most cases. If the couple cannot agree, however, Illinois law says that a court has the authority to divide the couple’s marital property in a manner that is equitable and just—not necessarily equally. Only marital property is subject to division in a divorce, and determining what constitutes marital property is the first step of the property division process.

According to the Illinois Marriage and Dissolution of Marriage Act, marital property includes all assets and debts acquired by either spouse during the marriage with a few important exceptions. Gifts or inheritances received by one spouse are considered to be non-marital, as are the proceeds realized by the sale of property owned prior to the marriage. Non-marital property may be considered in analyzing a party’s financial situation, but it is not subject to division.

What It Means

The law does not make reference to whose name is on a real estate deed or vehicle title, nor does it address which spouse paid for which items. If either spouse obtained the asset during the marriage, the asset is almost certainly considered to be marital property. This applies to tangible items such as cars, real property, and furniture, as well as to financial assets including earnings, savings, and investments.

Certain assets may consist of both marital and non-marital portions, and only the value of the marital portion is subject to division. Assume, for example, that you took out a mortgage to purchase a home and made payments for 15 years before you got married. Your spouse moved into your home, and you continued to make payments using your normal income for the next 15 years, successfully paying off the home at the 30-year mark.

If you were to get divorced after the home was paid off, the portion of equity paid into the home during the first half of your mortgage is likely to be considered non-marital property. The equity built during the second half while you were married would likely be marital property. Calculating the exact value of each portion may require the assistance of a real estate appraiser or financial professional, but only the marital portion must be accounted for during the divorce.

We Can Help

Identifying marital property is not always as easy as it seems, but our team is equipped to help you. Contact an experienced DuPage County property division attorney to discuss your situation today. Call 630-871-1002 for a free consultation.




Are Frozen Embryos Marital Property?

embryos, Wheaton family law attorneyOver the past few years, there have been a number of cases in which a divorcing couple disputes the owner of embryos originally intended for in vitro fertilization. Throughout our society, fertility issues and timing are becoming much more common concerns than in past generations. Understandably, this is an extremely personal topic, but it must be addressed because failure to do so may lead to a host of negative consequences for both spouses and certainly for any child born as a result.

Marital Property in Illinois

During an Illinois divorce, marital property is divided under the theory of equitable distribution, meaning that the marital estate is divided as equitably as possible—not necessarily equally. If, for example, one spouse has a significantly higher-paying job, they may receive fewer marital assets or lower spousal support in the divorce agreement, simply because they likely need it less. The concept of equity is interpreted to mean ensuring each spouse has the tools they need to maintain a comparable standard of living post-divorce.

The court generally has the final say on the disposition of most assets, though if the parties have executed a prenuptial agreement or another type of settlement that makes provision for certain specific items—family heirlooms or high-dollar items are the most commonly singled out—it will usually be honored. Also, marital misconduct may not be considered in a determination of asset division; since the abolition of grounds for divorce, fault-based considerations may only be debated in very rare circumstances.

Unusual Considerations for Embryos

While in most situations, this method of property distribution is acceptable and even intelligent, it can be argued that attempting to ‘equitably distribute’ such personal and unusual items as frozen embryos is impossible, as well as against public policy. To give one party the right to control the fate of the embryos could essentially force parenthood upon the unwilling or dash the hopes of one who hopes to have a family. Most couples, married or unmarried, execute some sort of agreement dictating the fate of the embryos, but when no such agreement exists, it is up to the court to decide. Sometimes, the court will hold that they should be destroyed so as to safeguard the parties’ right to privacy over their genetic material.

The controlling case in Illinois as of this writing is instructive. In Szafranski v. Dunston (2013), two people who had never married drew up (but never signed) a contract regarding their fertilized embryos. However, the relationship was abruptly terminated, and Mr. Szafranski then filed suit to enjoin Ms. Dunston from the use of the embryos. This being a case of first impression in Illinois, the court ultimately held that the intent of the couple ought to hold sway, regardless of whether the contract was signed or not. Several other states follow the same principle, but that does mean that a couple must be very careful and clear about their intentions going forward.

Ensuring Your Rights Are Protected

Because dealing with frozen embryos is such a delicate and personal matter, having a compassionate and knowledgeable attorney is critical. Our understanding and dedicated DuPage County property division attorneys can help you through this complex time. Contact us today to set up an initial appointment.





When Does Separate Property Become Marital Property?

marital property, Wheaton divorce attorneysWhen it comes to divorce, Illinois law defines marital property as any assets or debts that either spouse acquired during the marriage. Assets the spouse owned prior to marriage are generally considered separate, non-marital property. However, it is possible for separate property to be reclassified as marital property through a legal doctrine known as “transmutation.”

Court Refuses Husband’s Request for Reimbursement of House Payment

What does transmutation involve exactly? Here’s an illustration from a recent Illinois divorce case. A could divorced after 28 years of marriage. The couple owned a home that they purchased in 1999. The husband made a $20,000 down payment for the house, which represented the proceeds from the sale of various items personal property that he owned prior to his marriage.

The husband also had a retirement account. A few days before separating from his wife, the husband deposited $14,200 into this account. He said the money represented the proceeds from the sale of various firearms previously owned by his mother and given to him as a gift.

Before the divorce court, the husband argued the $14,200 was non-marital property. He also sought reimbursement from the wife for the $20,000 down payment on the house, which he also claimed was non-marital property. The judge rejected both of these arguments.

The Illinois Fourth District Appellate Court upheld the judge’s decision. With respect to the $14,200 in the retirement account, the husband simply failed to present “clear and convincing evidence” this was non-marital property. The judge was therefore entitled to treat it as marital property.

As for the $20,000 down payment on the house, here the Appellate Court said transmutation came into play. Even taking at face value the husband’s claim the money was non-marital property, by co-mingling it with marital property, it effectively became a “gift” to the marriage. The burden of proof was then on the husband to demonstrate he never intended such transmutation of his property to occur.

The Appellate Court explained that the husband and wife purchased a home 12 years into their marriage. They co-owned the property in a joint tenancy. The balance of the purchase price, aside from the down payment, was financed with a mortgage in both of their names. All of this created a strong presumption that the down payment was a contribution to the acquisition of marital property.

The wife was not required to offer any further proof on this issue. Rather, it was up to the husband to overcome the presumption. He failed to do so, and, therefore, the entire value of the home was treated as marital property.

Speak With an Illinois Divorce Lawyer Today

Cases involving the possible transmutation of marital property can become extremely complex and, often, contentious. In a divorce, you should never take anything for granted. Even if you believe certain property does not belong to the marriage, the law may see things differently. This is why you need to work with a qualified DuPage County family law attorney who can help protect your interests. Call 630-871-1002 for a free consultation at one of our three convenient locations today.