A divorce proceeding includes not only the division of a family, spouses, and sometimes children, but also the division of property. The Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/503) governs the division of property in divorce proceedings. The complicated process of property division in a divorce proceeding includes 1) the identification of each spouse’s income, property, financial accounts, and other assets; 2) the classification of all income, property, financial accounts, and other assets as marital property or non-marital property; 3) the valuation of all income, property, financial accounts and other assets; and 4) the division of all income, property, financial accounts and other assets.
Before a divorce can settle or proceed to trial, each spouse must confirm that all the income, property, financial accounts, and other assets are accounted for. The goal of each spouse should be to learn and know all the facts and figures so that he or she can make an informed decision regarding the division of marital property or proceed to trial. The discovery of marital property most often occurs in one of two ways: 1) through the informal exchange of information through voluntary disclosures and corroborating sources; or 2) through a formal investigation of the assets called “Discovery.”
In some marriages, spouses share equal control and knowledge of the family’s income, assets, property, and other financial matters. More commonly, one spouse manages most or all the family’s finances, including paying the household bills and expenses, handling investments, and other financial matters. The spouse who manages the family’s finances has an inherent advantage during the divorce process and it is not uncommon for him or her to use this control to the detriment of the other spouse. In this instance, it is especially important to retain the services of an experienced family law attorney who can help you discover, identify, and locate hidden or unknown assets.
The experienced family law lawyers at SLG Family Law have extensive experience in handling complex and complicated financial issues in divorce and can help you discover, identify and locate hidden or unknown income, property, financial accounts, and other assets.
After all property has been identified, it must then be classified as either marital or non-marital. In Illinois, anything that is acquired after the date of marriage until the termination of marriage through the entry of a Judgment for Dissolution of Marriage or divorce decree is presumed to be marital property regardless of who earned it, who paid for it, or in whose name it is titled or held.
There are certain exceptions to this rule. Property that was a gift, inherited or specifically excluded by valid written agreement between the parties, known as a Prenuptial Agreement, is non-marital property. Common examples of Non-Marital Property include:
After all property has been identified and classified as marital or non-marital, the next step in the process of marital property division is valuation. The valuation of some assets, such as bank accounts, brokerage accounts, and some retirement accounts, is very straightforward because the values are set forth on account statements. The valuation of other marital assets may not be as easy and could require the help of an expert. For example, if the spouses are unable to agree on the value of the marital home or other real estate, then an appraisal should be obtained. If the marital estate includes an interest in a family-owned or closely-held business or other private investments, then it may be necessary to hire a valuation expert to determine the value.
The experienced family law lawyers at SLG Family Law have extensive experience in the valuation of complex and complicated financial assets in divorce and can help you ensure that the valuation of the marital assets is accurate.
Illinois is an “equitable division” state. There is not a presumption that marital property will be divided equally or 50/50. In Community Property states, such as California and Wisconsin, “community” property is divided equally or 50/50. The Illinois Marriage and Dissolution of Marriage Act does not make any reference to the “equal” or “50/50” division of marital property. Instead, Illinois Law states that marital property will be divided in “just proportions,” meaning fairly or equitably based on each marriage’s unique facts. It is also important to note that the division of property in a divorce is made “without regard to marital misconduct.” The law does not punish the “bad” party regardless of whether it was adultery, physical abuse, mental, verbal, or emotional cruelty, or desertion that caused the breakdowns of the parties’ marriage.
In determining the equitable division of marital property, the court will consider several factors, including:
The experienced family law lawyers at SLG Family Law have extensive experience in dividing marital property in an equitable manner and understanding the tax consequences of that division.
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