Marital Property vs. Non-Marital Property
Marital property can be several things, such as land, money, and debt. However, not all things acquired during a marriage until the date of separation are marital or joint property.
During the divorce proceedings, a court will investigate the value of both spouses’ property. In the state of Illinois, courts will usually accept a "reasonable" property division if the parties agree to a decision, but a judge must make a judgment if the divorcing spouses cannot agree. The Illinois Circuit Court will divide the marital estate following a trial in a Judgment of Divorce.
In some states, marital property is known as community property and a judge will divide it equally after divorce. This is not the case for Illinois, which has an equitable system of property division. Equitable does not mean equal or dividing property in half, but means dividing the couple’s assets in a way the court considers fair.
Illinois is also a dual classification state. This means a court will separate marital property from individual (non-marital) property in its judgment without regard to marital conduct.
A judge will look at when the couple’s property was acquired, how the property was acquired, and if the property has appreciated or depreciated in value during the marriage. For example, a house acquired before marriage by one person is that person’s non-marital property and stays non-marital property, unless the owner chooses to place the other spouse’s name on the property title, or uses the other spouse’s funds for house upkeep.
Property is also considered non-marital property if it was given as a gift or inherited by one spouse only. This is the case if the individual who inherited the property does not place the other spouse’s name on the title, or use common funds to maintain the house.
In awarding a family home, the judge will consider who has the ownership right to live in the home.
While timing of property acquisition is important, there are other considerations. The contributions of each spouse toward property acquisition and the caretaking of the property, including contributions of either spouse as a homemaker, are essential to property division.
The judge will consider the duration of the marriage; each spouse’s age, health, occupation, ability for employment; ability to acquire vocational skills; and possible sources of income. The judge will also consider any obligations resulting from a prior marriage. An example of this would be a spouse who has child support to pay from a previous relationship.
While property division in divorce is a state matter in Illinois, there may be federal tax consequences of the property division. After divorce, spouses may have equal tax burdens, but unequal means to pay the taxes owed. If you are looking at a divorce and worried about the outcome, you should seek the help of the competent Chicago divorce attorneys at Nottage and Ward, LLP. For a comprehensive and sensitive consultation, call (312) 332-2915.
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