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Dividing Property

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Categorized as Illinois Divorce, Property Division

                In order to obtain a Judgment for Dissolution of Marriage, the parties must do one of two things: either settle their case, or proceed to trial. Under the first option, the parties reach a settlement agreement which disposes of all issues regarding their property and their children. Once the agreement has been reached, the parties will request the Court to enter their agreement and dissolve their marriage. Under the second option, if the parties are not going to reach a settlement agreement, they must proceed to trial and dispute their issues before the Court. Once the trial is completed, the Court will determine how to equitably distribute the parties’ property and resolve any custody issues with respect to the parties’ children. When facing a divorce trial a question that often arises is “what is the Judge going to do with our property?” In order to understand what the Court may do with your property after the trial is over, it is important to know what the Court is authorized to do with your property under the Illinois Marriage and Dissolution of Marriage Act.

                Section 503(i) of the Illinois Marriage and Dissolution of Marriage Act authorizes the Court to “make such judgments affecting the marital property as may be just and may enforce such judgments by ordering a sale of marital property, with proceeds therefrom to be applied as determined by the Court.” As a result, Section 503(i) allows the Court to distribute, and even order the sale of, the parties’ marital property.  Marital property is all property that is acquired by either spouse during their marriage. This includes any property that is acquired after a Petition for Dissolution of Marriage is filed, but before the Court enters a Judgment for Dissolution of Marriage dissolving the parties’ marriage. This means that, even if one party purchases a piece of property during the marriage with their own money, this piece of property will be considered marital property and may be divided between the parties by the Court. For example, if a husband purchases a vehicle with his own money after the parties file for divorce but prior to the divorce being entered, this vehicle is considered marital property and Section 503(i) authorizes the Court to order the husband to sell the vehicle and give some of the proceeds to the wife.

                Any property acquired prior to the marriage is not considered marital property, but rather, is labeled that party’s non-marital property. The statute also provides that marital property does not include any property that is by acquired gift, legacy or descent, property acquired in exchange for property acquired before the marriage, property obtained in a judgment awarded to one spouse from the other spouse, and income or an increase in value of property acquired through these methods, even if the property was acquired by these methods during the marriage. Because the statute only allows a Court to distribute marital property, the Court cannot distribute a party’s non-marital property. Rather, the non-marital property must be awarded to that party, unless they otherwise agree.

                Although the statute authorizes the Court to distribute and sell the parties’ marital property, it is important to remember that, when distributing this property, the Court will consider all of the relevant factors in your case. Therefore, even though the statute authorizes the Court to order the husband sell his vehicle in the example provided above, that does not necessarily mean the Court would require the husband to sell his vehicle. Rather, the Court will consider the parties’ property as a whole and will equitably distribute that property based upon the property’s value and the facts of the parties’ case.

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