HENDERSON & MEHTA
Law and Mediation
Property, Debt & Asset Division Lawyers - Joliet, IL
In a Divorce or Dissolution of Marriage Action, the Court determines how the property should be divided between the spouses.
Is Property Non-Marital or Marital?
In Illinois, generally, all property that is acquired from the date of Marriage until the date of Divorce is considered marital property and is divided between the spouses. Certain property may be deemed non-marital if it meets the following requirements:
(1) property that was acquired by gift, legacy, or descent or property acquired in exchange of 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 of 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;
(7) the increase in 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;
(8) income from property acquired by property characterized as non-marital.
What happens if non-marital property is mixed with marital property?
If property that is marital and non-marital property are combined or commingled and retains its identity then it will remain non-marital property. If the marital and non-martial property is commingled or combined in such as way that its identity is lost then it becomes marital property.
What Factors does the Court determine in deciding what portion of the property each spouse should receive?
The court considers a number of factors when determining how the assets and debt should be divided between the parties. These factors include:
(1) each party’s the contribution to the acquisition, preservation or increase or decrease in the value of marital and non-marital property , including (i) any decrease deemed to be an advance from the parties’ marital estate and the (ii) contribution of a spouse as a homemaker or to the family unit;
(2) the dissipation by each party of the marital property provided the statutory requirements to perfect such a claim are made;
(3) the value of the property assigned to each spouse;
(4) the duration of the parties marriage;
(5) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for a reasonable periods to the spouse having the primary residence of the children;
(6) any obligations and rights arising from a prior marriage of either party;
(7) any prenuptial or post-nuptial agreement of the parties;
(8) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
(9) the custodial provisions for any children;
(10) whether the apportionment is in the lieu of or in addition to maintenance;
(11) the reasonable opportunity of each spouse for future acquisition of capital assets and income; and
(12) the tax consequences of property division upon the respective economic circumstances of the parties.
How does the court determine the value of the property?
The Court will employ a fair market value. The Court will value the property as the date of trial unless the parties agree on a different date or the court determines that another date is appropriate.
What is Contribution?
Contribution is a legal concept where the efforts of one spouse to the acquisition, improvement, preservation or increase in value of property is acknowledged and compensated. This is most commonly occurs when a spouse uses his or her traceable non-marital assets to improve the non-marital assets of the other spouse or the marital assets. Contribution may also exist where marital assets are used to improve or increase the non-marital assets of one of the spouses.
What is Dissipation?
Dissipation is a legal concept where one of the spouse’s has decreased, destroyed, encumbered or otherwise reduced the value of the martial estate or marital assets. If proven, the spouse who dissipated will be required to reimburse the marital estate or spouse for their decrease in value of the marital estate.
In order to perfect a claim for dissipation the following steps must be taken:
(1) a notice of intent to claim dissipation must be filed no later than 60 days before trial or 30 days after discovery closes, whichever is later;
(2)the notice of intent to claim dissipation shall contain at a minimum a date or period of time during which the marriage began undergoing a irretrievable breakdown, a identification of the property dissipated, and a date or period of time during which the dissipation occurred;
(3) a certificate of service shall be filed with the clerk of the court and served pursuant to applicable rules;
(4) no dissipation shall be deemed to have occurred prior to 3 years after the party claiming dissipation knew or should have known of the dissipation, but in no event prior to 5 years before the filling of the Petition for Dissolution of Marriage.
The attorneys at Henderson & Mehta Law and Mediation at experienced in all aspects of property and debt division. The guidance of an experience attorneys is essential in any case that involves these issues. Please contact our office for a free consultation on the property issues affecting your case.