If you are filing for divorce in Palatine, IL, you are likely to have questions about how property division will work. For instance, what does it mean that Illinois is an equitable division state? And what happens to property that you owned before you got married? How will the court treat property that began as separate property but increased in value due to the efforts of both spouses during the marriage? These are just a few of the questions that divorcing spouses are likely to have when they are thinking about property division, and it is important to understand how the court will handle the disposition of marital assets and debts.
We would like to address a few of these questions to help you understand some of the complications that arise during property division in a divorce.
Distribution of Property Under Illinois Law
In Palatine, property division, or the distribution of property, is governed by Section 503 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA). This legislation recently underwent some significant changes, but generally speaking, the law in our state has not changed substantially when it comes to dividing marital property. First, divorcing spouses should understand that property—meaning both assets and debts—will be classified either as “marital property” (meaning property belonging to both spouses and thus subject to division) or “non-marital property” (meaning that property belonging to only one spouse and thus not subject to a claim by the other spouse during divorce).
As the statute explains, all property acquired by the spouses during the marriage will typically be classified as marital property. There are a number of exceptions, however, including but not limited to:
- Property acquired by one spouse “by gift, legacy or descent”;
- Property acquired by one spouse prior to the marriage;
- Property acquired by one spouse after a legal judgment of separation; and
- Property specifically classified as non-marital property through a premarital agreement (also known as a prenuptial agreement or a “prenup”) or through a postnuptial agreement.
As the statute explains, Illinois is an equitable distribution state, which means that marital property will be divided in a manner that the Court deems to be fair, or equitable, based on a number of different factors. This might sound simple enough, but complications often arise. What kinds of issues result in complex property distribution issues?
Property Division Complications and the Commingling of Assets
There are many ways in which property division can be a complex process, and this phase of a divorce tends to be extremely contentious. One of the most common ways in which property division gets complicated is when a spouse has commingled separate property with marital property. For instance, if Spouse A has $50,000 before the marriage (that would normally be classified as separate property) and she decides to put that money into a joint bank account that both spouses contribute to during the marriage and that the couple uses to pay joint bills, the court will need to make a decision about the classification of that property.
The statute states that, if commingled separate property “loses its identity” as separate property, then it transmutes, which means that in the Courts view, the property has been converted or gifted to the marital estate now and is no longer the sole property of the one who brought it into the marriage. If the property retains its identity as separate property, then it remains the separate property of the contributing spouse. In the hypothetical example above, the court would need to decide whether the $50,000 lost or retained its identity as separate property, and thus whether or not it would be subject to division.
The issue of commingling is a large one, and this is just one example of a complication that can arise during property distribution. Another common complication occurs when people sell their own condos and use the proceeds to buy a marital home together with their new spouse. Those situations are very fact specific and need to be assessed by an experienced divorce attorney.
Contact an Experienced Divorce Attorney in Palatine, Illinois
Property division can be an extremely contested aspect of divorce, particularly when spouses disagree as to the nature of a particular item or asset. As such, it is essential to have a dedicated advocate on your side throughout this process. If you are thinking about filing for divorce or have questions about specific family law issues in Illinois, an experienced divorce attorney in Palatine can assist you today. Contact the Law Offices of Jenet G. Pequeno, LLC for more information. We serve clients in Rolling Meadows, Inverness, Arlington Heights, Schaumburg, and Barrington.