Understanding property division.

Once the decision is made to proceed with divorce, an attorney will want to understand key areas of your situation. Property division is one of the first major areas of discussion.

Property. Formerly, Illinois divorce law provided that property was to be divided between the parties in accordance with the manner in which title to the property was held. In 1977, this law was changed, and attorneys now have a concept in Illinois known as “marital property,” or “equitable distribution.”

Under present Illinois law, all property acquired by the spouses during the marriage is presumed to be marital property. The law provides that marital property is to be divided “equitably” between the parties.  In reference to marital property, as a practical matter, divorce attorneys start with the concept of a 50/50 distribution. From that starting point, however, your attorney may make adjustments depending upon the circumstances of the case.

Any property that was acquired by a spouse either before the marriage, or by inheritance, or by gift, is that spouse’s nonmarital property.  Further, property may be made non-marital by a valid agreement of the parties. Non-marital property is awarded to the party owning it.

Sometimes, property that was non-marital (either acquired before the marriage, or acquired by gift or inheritance during the marriage is changed (“transmuted”) to marital property. Transmutation can take place in various ways. For example, if a spouse owns real estate before the marriage and then places it into joint tenancy during the marriage, under most circumstances it will become marital property. Similarly, placing non-marital funds into a joint account can make the account marital.

There are other consequences that may arise by combining marital and non-marital assets. These are typically discussed with you by your attorney.

Another key matter is child support and the education of children. Stay tuned as these will be discussed in the next post.

 

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