What is Considered Marital Property in Illinois?

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What is Considered Marital Property in Illinois?

The marital property rule in the Prairie State, which is found in Section 503 of the Marriage and Dissolution of Marriage Act, is relatively straightforward. With a few exceptions, assets or debts acquired during the marriage are marital property. Everything else is non-marital property. However, as outlined below, the details are often much more complex.

The name on the title or payment obligation is irrelevant. If the debt or asset meets the criteria, it is marital property. Furthermore, an equitable division, which is what the law presumptively requires, is not always appropriate. For example, many spouses have premarital agreements which have specific designations. Judges uphold these directives in most cases.

So, when it comes to marital property classification and division, pretty much everything is uncertain. Therefore, a Rolling Hills family law attorney must stand up for your legal and financial rights. Otherwise, the other side could run roughshod over them, and the judge may be powerless to protect you.

Classifying Property

The average marriage that ends in divorce lasts a little over seven years. During such a relatively long time period, property often becomes commingled.

Student loans are perhaps the most common example. As long as the debtor borrowed the money before the marriage, the obligation is clearly non-marital property. However, most people use money from their paychecks to pay these obligations. Paycheck funds, since they were acquired during the marriage, are marital property.

When the couple divorces, the marital estate could be entitled to reimbursement from the debtor spouse. Furthermore, personal use of marital funds could be dissipation (waste) of marital assets. Such allegations, if proven, could have significant ramifications on the remainder of the property settlement. Dissipation is grounds for a disproportionate marital property division.

We mentioned premarital agreements above. Illinois laws in this area are much more streamlined than they were 10 or 15 years ago. So, these contracts are no longer just for the super-rich. They are especially popular among Millennial couples.

Frequently, these agreements pre-classify property, especially assets, as marital or non-marital. No contract is ironclad, but prenups are close. Even if the terms are uneven, these agreements are usually valid as long as each spouse had an independent Rolling Hills family law attorney throughout the entire process.

Dividing Property

The “equitable division” rule in Illinois is subjective. The e-word could mean different things in different contexts. So, the law sets forth a number of division factors to consider, such as:

  • -Length of the marriage,
  • -Relative future earning capacity of each spouse,
  • -Non-economic contributions to the marriage,
  • -Agreements between the parties, and
  • -Custody of minor children.

That last bullet point often does not involve a division, at least right away. Generally, the children benefit when they remain in the family home. Therefore, it’s often in the best interests of the children for the residential custodian to stay in the house as well. So, the best interests of the children might be inconsistent with an equitable division of the marital estate.

Frequently, attorneys use owelty partition liens in these situations. For example, if Father is the residential parent, he gets outright title to the house. Mother receives a lien for her share of the equity as of the date of divorce. When Father sells the house later, the lien must be paid.

That arrangement usually works well, especially if the family home is a starter home that Father intends to sell within a few years. 

In other cases, an offset may be a good idea. For example, Father could waive his interest in Mother’s retirement account in exchange for 100 percent of the home equity.

Incidentally, divorce only affects title records. In this example, Mother’s name might be off the deed, but it is still on the note. Father must normally refinance the loan to remove her name. Furthermore, only part of a retirement account is usually divisible. If Mother’s IRA contained $5,000 on the date of marriage and $20,000 on the date of divorce, only $15k is marital property.

Reach Out to a Compassionate Cook County Attorney

Various legal solutions are available for your changing family. For a free consultation with an experienced family law attorney in Rolling Meadows, contact Andrea Heckman Law, Ltd. Convenient payment plans are available.

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