During the process of divorce, you are likely to experience many changes to your life. With all of the uncertainty that abounds, it is not uncommon for people in the midst of a divorce to try to maintain a level of security and stability by continuing to live in their marital home, even after their divorce is finalized. Staying in the family home, however, is not always quite so simple.

Crucial Considerations Regarding the Family Home

The family home is usually included in the division of marital property, so the question of which spouse, if either, will retain possession of the home will need to be legally resolved. If you are deciding whether you should pursue possession of the home, there are a number of important questions to consider, including:

• What is the state of the real estate market? If the home market is particularly hot and your home is likely to sell at a substantial profit, your best bet might be to sell and move into a new house—one that better fits your post-divorce situation. If the market is sluggish, you might be better off staying put.

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The distribution of assets is an important element in most Illinois divorce cases, and it can often lead to misunderstandings and arguments between the spouses. Items with sentimental value may cause even more disagreements than higher-value assets such as the marital home or vehicles, as both spouses might have an emotional attachment, making them less agreeable to parting with a particular piece of property. If you are interested in keeping a family heirloom, a specific work of art, or any other item with sentimental value, there are some ways you might be able to do so.

Is the Item a Marital Asset?

Whether or not a sentimental item is considered marital property depends on several factors. The two most important factors are when and how the item was acquired. Under Illinois law, an asset is generally considered marital property if it was acquired by either spouse during the marriage. If the item in question was yours before you got married, you typically have the right to keep it following your divorce.

It also matters how the item was acquired. Property acquired during the marriage can be considered non-marital if it was received as an inheritance specifically to one spouse. This means that if you inherited an heirloom from a family member, it is likely to be considered yours and not subject to being divided in the divorce process. The same is true of a gift if it is made to just one spouse.  

In the movies and on television, casual references to divorce and property division seem to promote the idea that divorcing spouses will automatically split their assets down the middle, with each person getting an equal share. While there may be some level of truth to that assumption in certain states, the reality in Illinois is often much more complex. Divorce and property division statutes in the state require the equitable distribution of marital assets, which means fair and just, not necessarily equal.

Negotiated Agreements

As with most aspects of divorce, there is no requirement that all decisions must be left up to the court. You and your spouse are able to work out a property division agreement that is reasonable and meets the needs of all involved parties. If the resulting agreement is not unconscionably one-sided and you and your spouse voluntarily agree to its terms, the court is very likely to approve it and incorporate it into your divorce settlement. Such an agreement, however, is not always possible; in which case, the court must intervene and make a determination.

If you or your spouse ends up in the unenviable position of having to file for both bankruptcy and divorce, it is imperative that you both understand the laws surrounding marital debts and bankruptcy. Many couples make assumptions and then react strongly when their carefully constructed asset division proposal collapses on itself. By educating yourself, you and your spouse can work to avoid such a fate.

Bankruptcy First?

One of the biggest questions regarding asset division, but especially marital debt, is whether to file for bankruptcy before divorce or vice versa. The general rule is that it depends on each spouse’s individual finances, and which type of bankruptcy would be filed. However, in most cases, filing beforehand tends to streamline the divorce process, while filing afterward or concurrently can cause a divorce to drag on. This is especially true if you or your spouse would be filing a Chapter 7 bankruptcy, either jointly or individually. In a Chapter 7, all debts are eliminated or written off, as opposed to in other types of bankruptcy where restructuring is more common.

Most people do not think about retirement benefits or accounts until they need to do so. Young people and couples may briefly mention such things in a prenuptial agreement or other type of discussion before or during their marriage, but too often, retirement is just something to think about in the future. The exception to that rule is during a divorce, as retirement savings and benefits are some of the most commonly disputed assets between spouses. It is extremely important that you understand what you are entitled to receive, if anything at all.

401(k) Accounts

If you have been at the same job for an extended period of time, there is a good chance you are enrolled in either a 401(k) account or an IRA (Individual Retirement Account). Such accounts are generally held to be marital assets (even if they only have one name on them) because, in most cases, they are either acquired or appreciate in value during the marriage. Dividing these accounts during a divorce can be somewhat complex because the rules differ significantly between states. 401(k)s, however, are governed by federal law—the Employee Retirement Income Security Act, or ERISA. Thus, the same procedure applies everywhere.