Like most other jurisdictions, Illinois is an equitable division state. Marital property must be divided equitably between the spouses. That is not necessarily the same thing as equality. Assets and debts must be divided in such a way that the divorce is not an unfair financial burden on either party.
Before marital property can be divided, it must be classified. The classification process sometimes involves little more than a calendar and a calculator. In most cases, however, it is quite complicated. Indeed, the property settlement is usually the most time-consuming portion of an Illinois divorce.
So, unless the marriage only lasted a few months or the parties had a premarital agreement, a Rolling Meadows family law attorney must often partner with a forensic accountant or another such professional to classify property. The property division settlement must adhere to several key factors. Otherwise, the judge will probably not approve of it.
Classifying Marital Property
The general rule for classifying property in divorce is simple: Property acquired by either spouse before marriage or as a gift is non-marital property. Everything else is considered marital property and is subject to division. However, as the old saying goes, the devil is often in the details.
Let’s say Husband and Wife got married shortly after college. Husband accrued $60,000 in student loans, which he repaid over the course of the marriage with money from his paycheck. The student loan is a non-marital debt, and Husband’s employment earnings are marital property. As a result, Wife might be entitled to reimbursement in the amount of $30,000, which is her share of the marital assets that Husband gave to his student debt lender.
That is just one example of commingling, an issue that is common in lengthy marriages. Most couples do not keep separate accounts. They combine all their assets and debts into one big pot. As a result, attorneys often have a Gordian knot to untangle.
Commingled funds are not the only issue. Transmutation might be an issue as well. Assume Husband owned a rental property since before the marriage, but Wife used a wedding gift from her parents to fund some improvements on the home. Based on the facts, upon divorce, the house could be Husband’s separate property, Wife’s nonmarital property, or marital property subject to division. The matter is further complicated by the prospect of future rental income. Either Husband or Wife, or both of them, could lay claim to at least part of these future assets.
Dividing Marital Property
Once property is classified, the marital property must be divided. To determine what constitutes an unfair financial burden, most Cook County judges look to a number of factors, such as:
- Non-economic Contributions to the Marriage: This factor might play a prominent role in the property division when one spouse gave up career opportunities in order to be a full-time, stay-at-home caregiver.
- Relative Economic Circumstances: Statistically, divorced women have a harder time rebuilding wealth than divorce men. So, if there is another significant disparity in terms of age, health, or educational background, the judge could order a disproportionate division.
- Custody of Minor Children: Typically, it is in the best interest of the children for them to remain in the family home. As a result, the residential custodian often receives title to the home and the nonresidential parent might receive a lien for his or her share of the equity.
Other factors include the length of the marriage, agreements between the parties, and dissipation (waste) of marital assets. Fault, like adultery or cruelty, is usually not relevant in the property division portion of a Cook County divorce.
Contact a Tenacious Lawyer
Divorce property division matters are not always entirely straightforward. For a free consultation with an experienced family law attorney in Rolling Meadows, contact the Law Offices of Martin A. Delaney III, Ltd.