Section 503(d) of the Illinois Marriage and Dissolution Act determines whether property is marital or non-marital. Marital property includes property purchased during the marriage, or in contemplation of marriage. Anything purchased during the time of the marriage, no matter how title is held, is presumed to be marital property.
You can override the presumption of something that was purchased during the marriage as being marital property by tracing the source of the funds to purchase the property back to non-marital funds , i.e., the money came from an inheritance, and that you kept the property solely in your name. In other words, you have not “commingled” the non-marital property with the marital property. If you can override the presumption, that property could be awarded to you as your non-marital property.
In Illinois, we have an equitable division of marital property, which does not necessarily mean 50/50. You could received 75% of the property, or only 25%. The court looks at many factors to determine how much each party should receive. The court first awards each party their own non-marital property, and then divides the marital property. All property is either non-marital or marital, it cannot be both. Section 503(d) lists the relevant factors to be considered by the trial court in dividing marital property, which include:
(1) The contribution of each party to the acquisition, preservation, or increase or decrease in the value of the marital or non-marital property, including the contribution of a spouse as a homemaker or to the family unit;
(3) The value of the property assigned to each spouse;
(4) The duration of the marriage;
(5) The relevant economic circumstances of each spouse when the division of the property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children;
(8) The age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
(10) Whether apportionment is in lieu of or in addition to maintenance;
(11) The reasonable opportunity of each spouse for future acquisition of capital assets and income.
If your spouse has a large non-marital estate, you can make an argument for a larger percentage of the marital property. You will also ask the court to award you a portion of the pension and/or 401(k) your spouse has earned during the marriage. The court will divide the vehicles, and all of the possessions unless you can agree, by way of a marital settlement agreement, what the division should be.
Along with the division of the marital property is the division of the marital debt. Marital debt, like marital property, is that which is acquired during the marriage. All the credit card debt, mortgages and the other debt is marital, if it was acquired during the marriage and needs to be divided accordingly. If your spouse acquired debt which was not used for the purpose of his family, you can argue that your spouse has “dissipated” the marital estate and that person should be solely responsible for that debt without any contribution from you. Debt such as vacations, gifts, mailing money to your family in another country, or even your contributions to your local church, could all be considered dissipation in certain circumstances.
Property distribution is a large part of the overall dissolution and the more documentation you have the better off you are. Collect as much information as you can and your ability to argue for an equitable distribution will be much easier.