Breaking Up Is Hard To Do: Property Distribution

In a bygone era, Illinois and most other American jurisdictions were all common law states, regarding marital property distribution. Under this system, marital property belonged to the spouse's name that appeared on the title, irrespective of anything else. That formula worked well through much of the nineteenth century, as it was generally illegal for women to own property.

Needless to say, a lot has changed in the Land of Lincoln since the man himself was first elected to the Illinois General Assembly in 1834. Now, the Illinois Marriage and Dissolution of Marriage Act stipulates that all marital property must be divided equitably, which is not necessarily the same thing as equally, no matter whose name appears on the title.

Pre-Distribution Procedure

Generally speaking, marital property is anything that was not acquired before the marriage or by gift. But property division is usually not as simple as that categorization implies.

In most marriages, especially those of a rather long duration, property often becomes commingled. For example, Husband might use funds from his paycheck (marital property) to restore a classic car he bought before the marriage (non-marital property), and Section 503(c) of the Illinois Marriage and Dissolution of Marriage Act addresses these issues.

The first question is whether or not the commingled property has transmuted, or lost its identity. To return to the previous example, if Husband only used his paycheck for new tires or new upholstery, the community property has probably been transmuted. This inquiry is very much fact-based.

If the property has not been transmuted, and the contributing estate can establish contribution by clear and convincing evidence, that estate is entitled to reimbursement. Such reimbursement often comes in the form of a lien that is payable when the property is sold.

Distribution Factors

Once the property is categorized, it must be divided in accordance with the factors listed in the statute. Some of the more prominent ones include:

  • Agreement: Most divorces are settled out of court, and the judge typically approves any agreement that was voluntarily made and not manifestly one-sided.
  • Children: If Wife maintains primary responsibility for minor children, she will may be awarded the house and a family-sized car, if the parties own these things.
  • Relative health: If one spouse is older or in poor health, that spouse may be entitled to a greater property share, because of a diminished income-earning capacity.
  • Relative economic circumstances: The same argument may apply if one spouse is a cardiologist and the other is a teacher's aide, or if one spouse is entitled to a substantial inheritance and the other is not.

For prompt assistance in this area, contact an experienced Naperville family law attorney for a confidential consultation. Convenient payment plans are available.


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