Background: Marital vs. Non-Marital Property
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. For example, if the money for the purchase came from an inheritance, and you kept the property solely in your name. In other words, you have not “commingled” non-marital property with marital property. If you can override the presumption, that property could be awarded to you as your non-marital property.
The court looks at many factors to determine how much each party should receive. It 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.
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.
Marital Debt Division
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 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 that was not used for the purpose of his or her 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. Dividing Assets is a challenge, and you need an experienced law firm such as Anderson & Boback for equitable divorce asset protection.
Contact us today if you need help with asset division. Our knowledge and fairness will ensure you get the best possible settlement agreement.