Determining marital property from non-marital property is a very important aspect of the divorce process and to the parties going through a divorce. It is important to have legal counsel with the knowledge and skills to distinguish between non-marital and marital property while also having the experience to provide legal advice and counsel as to the best way to allocate that property between the parties. WARD FAMILY LAW, LLC, has the expertise to handle any property classification by thoroughly reviewing and then analyzing all aspects of your case, which then allows for settlement (division of property) recommendations, negotiations or litigation to obtain the best outcome possible for each and every client.
In Illinois, a court shall equitably divide the marital property between the parties; equitable division does not necessarily mean an equal division, as there are numerous factors that the Courts consider in making a property division. Some of these factors include each parties’ contribution, the length of the marriage, the age and health of the parties, the non-marital property assigned to either party, whether the division is in lieu of maintenance, and the parties’ respective abilities to acquire additional assets after divorce just to name a few.
In discussing the disposition of property and debts, “marital property” means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage.
(1) property acquired by gift, legacy or descent or property acquired in exchange for such property; (2) property acquired in exchange for property acquired before the marriage;
(3) property acquired by a spouse after a judgment of legal separation;
(4) property excluded by valid agreement of the parties;
(5) any judgment or property obtained by judgment awarded to a spouse from the other spouse except, however, when a spouse is required to sue the other spouse in order to obtain insurance coverage or otherwise recover from a third party and the recovery is directly related to amounts advanced by the marital estate, the judgment shall be considered marital property;
(6) property acquired before the marriage, except as it relates to retirement plans that may have both marital and non-marital characteristics;
(6.5) all property acquired by a spouse by the sole use of non-marital property as collateral for a loan that then is used to acquire property during the marriage; to the extent that the marital estate repays any portion of the loan, it shall be considered a contribution from the marital estate to the non-marital estate subject to reimbursement; (7) the increase in the value of non-marital property, irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effort of a spouse, or otherwise, subject to the right of reimbursement provided in subsection (c) of this Section; and
(8) income from property acquired by a method listed in paragraphs (1) through (7) of this subsection if the income is not attributable to the personal effort of a spouse.
For purposes of distribution of property between parties, there is a rebuttable presumption that all property acquired by either spouse during the marriage (defined as the date of marriage and before a judgment of dissolution of marriage) is marital property. This presumption includes non-marital property transferred into some form of co-ownership between the spouses, regardless of how title is held. A spouse may overcome this presumption by showing that:
Some types of property can be considered both non-marital and marital. For example, all pension and retirement benefits in which either spouse acquired or participated in during the marriage are presumed to be marital property. However, any portion of those benefits that existed prior to the marriage are likely non-marital property. These include pension benefits under the Illinois Pension Code, defined benefit plans, defined contribution plans and accounts, individual retirement accounts, and non-qualified plans. A spouse may overcome the presumption that these pension benefits are marital property by showing that the pension benefits were acquired by a method listed above. The valuation and mechanisms for the division of these types of benefits are often governed by procedures established by the plan provider. Depending on the specific plan or the plan’s rules, an attorney or other qualified third party may be required to prepare a special order in order to effectuate the distribution of these types of retirement benefits between parties following a court granting their divorce.
In other cases, parties may own property that is not able to be divided at the time of divorce, such as stock options and restricted stock or life insurance policies. In such cases, the court must make special considerations in allocating this property between spouses in addition to considerations as to whether the property is marital property.
“Commingling” is a term used to describe the mixing of non-marital and marital property. Commingled property, meaning property that was once considered non-marital but was somehow combined or “commingled” with marital property, should be discussed with your counsel.
Often, it is difficult to keep non-marital and marital property completely separate, but that does not necessarily mean the non-marital property has been “commingled” and is now considered marital property. For example, a spouse who owns a non-marital rental property may claim that rental income on a joint tax return, resulting in a tax on the non-marital income that is then paid from marital funds. In situations such as these, the non-marital property has not been commingled; however, the non-marital property did benefit from the contribution of marital funds. The law in Illinois allows for reimbursement for this contribution, meaning the spouse who owns the non-marital property must pay back any contributions. These types of situations are very case-specific, so it is important to consult an experienced attorney.
On the other hand, non-marital property may be awarded to the party who owns it.
The court may seek the advice of financial experts or other professionals, whether or not employed by the court on a regular basis. The advice given shall be in writing and made available by the court to counsel. Counsel may examine as a witness any professional consulted by the court designated as the court’s witness. Professional personnel consulted by the court are subject to subpoena for the purposes of discovery, trial, or both. The court shall allocate the costs and fees of the professional personnel between the parties based upon the financial ability of each party and any other criteria the court considers appropriate, and the allocation is subject to reallocation. Upon the request of any party or upon the court’s own motion, the court may conduct a hearing as to the reasonableness of those fees and costs. Contact our skilled divorce attorneys today at WARD FAMILY LAW, LLC, to discuss your options and begin the process today.
It was quick and easy and those are two words I did not think I would say about my divorce. We are still friendly too. We just were not meant to be together anymore. Ward Family Law made sure to draft the documents with the terms that we agreed on which kept us on good terms and there was no fighting. I cannot recommend them enough if you are looking for a clean, honest, quick, easy divorce.
We were set to get married in a little over a month and my family insisted on a premarital agreement. On my very first call Jennifer explained the entire process and timing. They hit the ground running and got everything completed and signed well before our wedding date. That made everything much less stressful so I thank them so much for their professionalism and timeliness.
Our plan was to get married after the baby was born and then a year later we still were not married and we were going our separate ways. I had no idea that the birth certificate alone did not make me the legal parent of our baby in Illinois. Luckily, Ward Family Law handles these cases and established paternity through a DNA test and submitted the results to the court. We now have an agreement on time with our kids and support too.
Cannot recommend Jennifer, Emily and the entire team at Ward Family Law enough. If you have a divorce, custody or other family law matter then stop looking. They will have your back until the end. While my case was messy, they kept it on track and brought it through to the end. It was the best that I could have hoped for.
We already split up all our accounts and had no debt. We just needed the paperwork for the divorce. We started it on our own and then realized just how complicated it all was and needed to make sure it would get accepted by the divorce court. In came Jennifer and she explained the "friendly" divorce process that they oftentimes do and that allowed us to get it all done on our terms and fast.
When our child graduated high school I needed a lawyer to file papers to stop my child support payments and to figure out how we were going to pay for college. Jennifer at Ward Family Law got everything together and filed with the court. From start to finish it was smooth and by filing at the right time my child support payments did not continue for months and months. That saved me so much money - enough to cover the retainer in the first place. Well worth it to do it right
My kid was graduating high school and I needed to end my child support obligation and also needed to get money for college costs and expenses. While these are two different things, the attorneys at Ward Family Law handled the court filings and had the right order entered by the Judge terminating my child support obligation and then also got a contribution order entered for college costs and expenses. What a relief and I cannot say enough good things about the family law team.
I wanted a legal team that could do it all since I didn't know which way it would go. I was unsure about mediation, settlement, or litigation and my research showed that they could do it all. They did. Mediation was guided by my attorney, Jennifer, at Ward Family Law and although it was not a great outcome it was because the other side would not compromise. No problem. Jennifer transitioned the case to litigation to push for what I knew was right and what I knew I needed to fight for. We fought the good fight for my kids…
I am already a very anxious person. Ward Family Law walked me through the process and was with me every step of the way. Emily is patient and communicative. She would call or email me back the same day and made sure I was comfortable. The divorce was a difficult time but she made it so much better and I couldn't be happier about the outcome.
We were getting married in a month and needed to get our premarital agreement done quickly but also done right. Ward Family Law got us a list of talking points for me and my fiance to figure out what we wanted included and they walked me through the financial disclosures and other things that have to get done to make sure the premarital agreement is valid. Otherwise, what is the point, right? They did the draft of the premarital agreement and since we had talked through it with their guidance prior it made the entire process so easy. Highly recommend!!
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