Property division and the allocation of assets can oftentimes be the most contentious and complicated part of any divorce. Once a couple has agreed that their marriage is over, they can file the paperwork and get started, but in order to have the marriage legally dissolved by a judge, they must first agree to all of the important things like assets, debt, and custody if there are any children involved.
During a divorce, couples have a few options: the first option, and often the most preferable, is that the couple comes to an agreement without requiring a judge. The second option is to take it to court, where Illinois law states that all marital property be divided by “equitable distribution,” which does not mean an even split. Instead, equitable distribution takes into account the independent financial situation of each spouse, and then the judge determines a division that is fair to both.
What Is The Difference Between Marital and Non-Marital Property?
Before spouses, or the courts, can begin to determine how assets are divided, the property is divided into “marital” and “non-marital” property. Non-marital property is anything that one spouse owned BEFORE the marriage, and never added the other spouse to the title, paid taxes from joint accounts, or otherwise intermingled with their marital assets. Marital property is anything that was accumulated during the time of the marriage and was not otherwise addressed with a prenuptial agreement.
Marital property can be things like cars, boats, homes, bank accounts, pension funds, furniture, and anything else that has value. In addition, debt is also included in marital property, and includes things like mortgages, business loans, and credit card debt. All of these pieces of property are pooled and then divided accordingly.
Examples of Non-Marital Property
Non-marital property is any type of property that was gifted, inherited, or given to one spouse by another family member, anything explicitly excluded in a prenuptial agreement, properties owned by one spouse before the marriage (and the taxes or upkeep were not then paid with mutual accounts), or any income that was generated off of these assets without the help of the other partner. There are many other ways that your property can be considered non-marital, but it is best to consult with an attorney to be certain.
Provide Your Attorney All Relevant Documents
An experienced divorce attorney, like Robert S. Thomas, Attorney at Law, will work with their clients and go over all available information and documentation to determine which property will be included in which pool, and give their clients a reasonable expectation of the outcome. It is important for your attorney, as well as the judge if you go to trial, to have access to all documentation that illustrates the nature of each piece of property.
Any receipt or invoice that you have for work done on a non-marital property, historical financial records, and anything else that your attorney requests will be valuable when trying to paint your financial situation to a judge, or during negotiations with your spouse and their attorney.
If you are unable to reach an agreement, you will be leaving the decision up to a judge. Many people prefer to work directly with each other, so that they maintain control over their property. Depending on how willing your spouse is to work together with you, your best bet may be to hire an experienced attorney and get started on negotiations.