Property DivisionPRINT THIS
Dividing property in a divorce is more complex than it may seem. First, careful study and research are necessary to be sure that all property is accounted for. This can be accomplished informally, either by exchanging information through voluntary disclosures and corroborating sources, or after aggressive, thorough, formal discovery investigating sources and uses of assets. Next, property must be categorized as either marital or non-marital. Generally, property acquired during the marriage is presumptively marital property, while non-marital property includes property owned by a party prior to marriage. However, property acquired during marriage may be non-marital if it was acquired in exchange for property owned prior to marriage or was acquired by a party as a gift or an inheritance.
Separating marital from non-marital property is very important to the parties going through a divorce because a court may equitably divide between the parties only the marital property. Non-marital property may be given only to the party who owns it. For these reasons it is important to have a Chicago family law attorney with the skills to distinguish between non-marital and marital property. During marriage, people frequently take actions that cause non-marital property to be transmuted into marital property. It is not unusual for an attorney to trace transactions that occurred during the marriage that could change the character of property from non-marital to marital or the reverse.
Once the property is properly categorized, it must be valued. Many assets are simple to value. For example, bank and brokerage accounts, holdings of publicly traded securities, 401(k) and 403(b) accounts, and IRAs usually can be currently valued using only copies of recent statements. The value of a marital home or other real estate is more complicated and generally needs an appraiser if the parties do not otherwise agree. Closely held business interests and private investments are even more difficult to value and often need valuation experts to help determine value. If parties have valuable art, antiques, coin collections, gold, vehicles, watercraft, or aircraft, valuation experts must be employed unless the parties are able to agree to values. It is important to know the value of each asset because in making a division of marital property, assets may be set off against each other to achieve the equitable division. For example, it is unlikely the court would give one party an actual ownership interest in the other party’s small business; instead the court, once it knows the value of the business, would usually award it to the owning party and then, if there is to be a 50/50 split of assets between the parties, give the other party offsetting assets to equal the value of the business. Setoffs can include cash, real estate, or any other asset owned by the parties that has been categorized as marital.
Whether assets are divided in kind or with offsetting transfers, the court attempts to create an “equitable division,” which is not necessarily an equal division. There are a number of factors courts consider in making a property division, including contributions by the parties, the length of the marriage, the age and health of the parties, the non-marital property assigned to either party, whether the division is in lieu of maintenance, and the parties’ respective abilities to acquire additional assets after divorce. One factor that the Illinois courts are prohibited from considering is fault. Economic waste may be a factor considered; however, marital misconduct, whether adultery, physical cruelty, mental cruelty, desertion or the like are not considered in reaching an equitable division under Illinois law.
Schiller DuCanto & Fleck’s Chicago divorce attorneys regularly deal with complex financial cases and are well qualified to find, categorize, value and achieve the best property divisions for our clients.