For many couples, especially those who have been together for decades, their marriage has likely included building their marital estate. When these couples divorce, dividing property can be difficult, especially for assets that can't be easily divided or duplicated.
Complex property divisions can add significant time to a divorce, especially when couples are unable to reach an agreement. When you share significant assets with your spouse and are preparing for a divorce, knowing how Illinois views marital property and how to prepare for a division of assets can help make the process less overwhelming.
How Does Illinois Divide Property?
In divorce, property falls into two categories: marital and nonmarital. Nonmarital property goes to one spouse, and marital property will be divided as part of the divorce. Property doesn't always fall neatly into one category, and one point of disagreement may be whether or not property is subject to division.
Illinois is an equitable distribution state. This means a division that is fair when considering a variety of factors.
What Does a Complex Property Division Mean?
A complex property division refers to any assets accumulated during marriage or considered part of the marital assets. Illinois defines all property acquired during marriage as marital property, barring a few exceptions. Marital property may include:
· The family home
· Other real estate holdings
· Pension plans
· Stock and funds
· Bank accounts
· Retirement accounts
· Business interests
· Antiques and art
· Family heirlooms
· Assets with intangible value
These last three categories, along with the marital home, can be especially difficult to resolve. You generally can't divide these assets, and if neither party wants to sell them, the question becomes who gets what.
Consider these two examples:
· Gifts generally aren't considered marital property, but one spouse bought artwork for an anniversary. One spouse says the artwork was intended as a gift for both of them and is therefore marital property. The other says it was a gift and isn't included in the estate division.
· One spouse inherits a vacation home. While neither party disputes that that spouse has ownership, the couple spent a significant sum of money from their joint accounts to improve and renovate the property. Is the other spouse entitled to payment stemming from those improvements? And if so, how much?
What Property Isn't Included in a Complex Property Division
Even if acquired during marriage, some property won't be part of a property division. Known as non-marital property, property acquired as a gift or legacy or through the sale of property owned before a marriage are examples of property that generally won't be included in a property division. This includes property owned or purchased before the marriage or after the date of legal separation.
When nonmarital property may become marital property was transferred to co-ownership during the marriage. Similarly, if nonmarital property was commingled with marital property during the marriage, it might be difficult to determine what is and isn't marital property. In the latter case, Illinois divorces will generally rely on tracing, which focuses on assembling evidence of how an asset came from a nonmarital source.
Calculating the Value
The first step to dividing property is figuring out a couple's total assets. Both spouses' attorneys should help their client in compiling a list of all marital assets as well as any potential nonmarital assets that might be contested. You want to know the total value of the estate to determine a fair division.
Valuing assets can be difficult. One spouse may want a conservative number whereas one may believe the value is significantly higher. Assigning a cost to an idea of emotional value can also be challenging.
Some assets, such as a savings account, may be easy to divide. Others, such as if a couple owns a business or investment properties, can be difficult to decide.
An attorney should help a client not only with the valuation of the assets but determining what assets are likely to be contested.
Know Your Value
Even in a civil divorce, it's important that you advocate for yourself and your future. Divorce can be overwhelming, but it can be easier to manage when broken down into smaller steps and goals.
Anne O'Connell assists individuals in Cook and Lake Counties with navigating the divorce process. I know the area and have deep connections with the legal community in the Chicago suburbs.
I help my clients understand their options and encourage collaborative, civil proceedings even as I protect my client's rights and future. Contact us online or at (847) 859-6222.