Tag Archives: marital property

Factors Determining Property Division in Illinois

property division, DuPage County property division attorneysIf you are planning to get divorced, you are probably wondering how you and your spouse’s property will be divided. Since Illinois is an “equitable division” state, marital property is divided equitably, but not necessarily evenly. While some states split marital property 50/50, Illinois courts have the freedom to award more marital property to one spouse than the other if such an arrangement is found to be fair. When the court is dividing marital property and debt, there are specific guidelines they must follow.

How Property Decisions Are Made

Illinois courts look at twelve main factors when making property division decisions in a divorce. The first factor is each party’s contribution. More specifically, the court must consider how each spouse contributed “to the acquisition, preservation, or increase or decrease in value, of the marital or non-marital property.” Each spouse’s income is considered as well the non-monetary contributions the spouses made to the marriage including homemaking and child-rearing. Courts will also consider any dissipation, or wasting or hiding of assets, when making decisions about property division. For example, a spouse who used martial funds to finance an affair during the marriage may receive less of the marital property. The value of the property which is assigned to each spouse is also taken into consideration.

The length of the marriage is a factor courts take into account for two main purposes. Firstly, it operates as a multiplier of the homemaker contribution and rewards spouses who sacrificed work outside the home to raise children or manage the household. For example, a wife who stayed home to raise children during the course of a 20-year marriage will not be very employable when she re-enters the workforce. Courts may award her more marital property in order to help her transition to single life. The second reason the duration of the marriage is a factor in property division is to prevent “gold-diggers” from marrying wealthy individuals for the sole purpose of acquiring some of their wealth in a divorce. The courts also look at prior marriages that a spouse has had and any support or maintenance which they receive or have been ordered to pay.

Courts also consider any children of the marriage when deciding which spouse gets what in a divorce. When possible, courts try to keep children in the marital residence so that they do not have to move away from their school and friends. So, the custodial parent, meaning the one with more parenting time, will often be awarded the family home. This is not always the case, however. If the couple had created a prenuptial or post-nuptial agreement, this will also be very influential in the court’s final decisions.

Consult a Family Law Attorney for Help

If you are planning to divorce and have further questions about property division, spousal maintenance, child support, or other family law matters, the experienced Wheaton divorce attorneys at the Andrew Cores Family Law Group are ready to help. Contact us for a free and confidential consultation by calling 630-871-1002 today.

 

Source:

http://www.ilga.gov/legislation/ilcs/documents/075000050k503.htm

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.

 

Source:

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000050HPt%2E+V&ActID=2086&ChapterID=59&SeqStart=6100000&SeqEnd=8350000

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.

 

Sources:

http://www.ilga.gov/legislation/ilcs/documents/075000050K503.htm

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2013/1stDistrict/1122975.pdf