Apart from matters involving the care and upbringing of a couple’s children, property division is often one of the most contentious considerations in a divorce. When two people have spent a significant number of years together, building a life, accumulating assets and wealth, and preparing for a long-term future, it can be incredibly difficult to determine which property should be allocated to which spouse following the dissolution of their marriage.
Marital vs Non-Marital Property
In a divorce situation, only property that is determined to be part of the marital estate is subject to division. Put simply, marital property is any property, asset, or debt acquired by either spouse during the marriage with certain exceptions, including:
- Property acquired as a gift or inheritance;
- Property acquired after a judgment of legal separation;
- Property designated as non-marital property in a valid prenuptial or postnuptial agreement;
- Property acquired in a judgment awarded to one spouse from the other;
- Increase in value of non-marital property, though contributions of marital property and personal efforts of one spouse may be reimbursable; and
- Proceeds of the sale or exchange of non-marital property.
While determining marital and non-marital property is sometimes very straightforward, in other situations it can be quite complicated. This can be particularly true when the spouses own separate business interests, real estate holdings, or significant retirement investments.
Findings of Fact
The rewrite of the Illinois Marriage and Dissolution of Marriage Act that took effect this month effected a number of substantial changes, including a complete remodel of the state’s child custody laws. As it pertains to property division, however, the new law changed very little of substance, but did include some new procedural requirements. Specifically, when the court is left with making a determination regarding the marital estate and the allocation of marital property, the court must justify any decisions being made. Under the new law, “the court shall make specific factual findings as to its classification of assets as marital or non-marital property, values, and other factual findings supporting its property awards.”
Proponents of the change believe that both parties to a divorce have the right to fully understand the rationale behind the court’s judgment. Such understanding generally results in better compliance with the finalized orders. Should an appeal or modification ever be appropriate, the reviewing court will also be able to more accurately evaluate the initial court’s decision.
Property Division Lawyers
If you are considering divorce of if your spouse has already filed the petition for dissolution, it is important to speak with an experienced Kane County family law attorney. Contact Bochte, Kuzniar & Navigato, P.C., today to schedule your free consultation and get the assistance you need throughout every step of the divorce process.