Throughout a marriage, couples acquire assets, that later are often deemed “marital property”. In the course of a divorce proceeding, if the spouses cannot agree, the court will decide the manner and amount of the division of assets (and debts). A judge will first characterize assets to be either marital or non-marital property. While this process may not seem complicated, certain circumstances may cause this process to be less clear. For example, if a couple has started joint bank accounts with funds they held individually prior to the marriage or if a gift that has been made to one spouse that was subsequently put into a joint ownership like a bank account, those same funds could be used for family expenses and viewed as a gift to the other spouse and thus lose its separate “character”. The legal term when this occurs is known as transmutation. So, to be certain property and assets that would not otherwise be considered “marital” property includes assets:
- Owned before the marriage;
- Received through a will as a gift or inheritance;
- Received after the legal separation;
- Included in an agreement between the spouses;
- Awarded from a court judgment from one spouse to another; and
- Received in exchange for any of the above.
Once the assets have been determined to be marital or non-marital, the court will then begin a process of “awarding” assets to each party in an equitable, but not necessarily equal, fashion looking at criteria such as length of the marriage, ages of each spouse, and standards of living during the marriage. It is important to note that Illinois does not consider any misconduct in the marriage, such as infidelity, when dividing the assets between the spouses.
The court may also consider the amount and type of non-marital assets when making other decisions, such as maintenance payments. The court’s comprehensive view helps the divorce to be resolved in the most fair and just manner after applying Illinois law.
A divorce is not only an emotional challenge for the parties but can also be complicated. Professional legal guidance can help you understand your rights. If you or someone you know is at the brink of a permanently broken marital relationship or embroiled in a divorce proceeding, contact our office to schedule your initial consultation.