Property Division

St. Charles Illinois Property Division Lawyers

After thousands of cases, we know how to get what is rightfully yours.

When a couple divorces, property they have accumulated across years or decades of marriage must be divided. This process can be complicated and contentious for a number of reasons, including:

  • Both parties wanting to keep a particular asset, such as the family home
  • Disagreement about the value of assets
  • Disagreement about whether certain assets are marital property subject to division

Even when a couple is able to reach an agreement about how to divide their property, it typically requires the assistance of experienced property division attorneys. At Peskind Law Firm, we have extensive experience with all aspects of family law, including property division in divorce. Founding attorney Steven Peskind has authored five books about family law, and is one of just 100 Diplomates of the American College of Family Lawyers.

What is Marital Property?

The first step in dividing property in a divorce is to determine which property is marital property and which is separate property of one spouse or the other. Generally, property one partner owned before the marriage is considered separate property, while property acquired during the marriage is considered marital property. However, there are exceptions. For example:

  • Property received by one spouse as a gift or inheritance is considered separate property
  • Property acquired by sale or exchange of separate property is considered separate property
  • Income from separate property is also considered separate property
  • Property that would otherwise be considered marital property may be deemed separate property in a valid prenuptial agreement

After a long marriage, it’s common for property to become mingled, meaning that it may become marital property in whole or part marital property. If the property is commingled to the point that it loses its separate identity, it is treated as marital property. For example, if each spouse brought savings into the marriage, but they combined their savings into one account and continued to add to it and occasionally make withdrawals from it over the years, the entire account would generally be treated as marital property.

Sometimes, it’s more complicated. For example, one spouse may own a home with no mortgage at the time of the marriage. On that basis, the home is separate property. But, imagine that 10 years into the marriage, the couple renovates the home using marital funds, increasing the value of the property. After the renovation, the spouse who previously had no interest in the property may now be entitled to a share of the increased value. Determining what portion of commingled property is marital property for purposes of property division can be complicated and often requires the use of outside experts.

How is Marital Property Divided?

Illinois is an equitable division state. Often, that means a 50/50 split, but it doesn’t have to. The court can divide the marital assets in any way it finds to be fair based on considerations such as:

  • Each party’s contribution to the marital estate
  • Whether either party has dissipated assets
  • The value of the property assigned to each spouse
  • The length of the marriage
  • The economic circumstances of each party
  • Whether the spouse having primary physical custody of the children should be awarded the family home, or should have the right to reside in it for a set time
  • Any rights and obligations arising from a prior marriage
  • The terms of a valid prenuptial or postnuptial agreement
  • The age, health, occupation, and access to income of each party
  • The custodial arrangements
  • Whether the property division is in addition to spousal maintenance or in place of it
  • The reasonable opportunity for each to acquire future assets and income
  • The tax consequences of the property division

While these factors are set forth in the statute, the court is also to consider all factors it considers relevant in dividing property. However, the statute also states that the court shall not consider “marital misconduct” in determining how to divide property.

Property Division When One or Both Spouses Owns a Business

Property division and other financial aspects of a divorce case can be especially complicated when one spouse is self-employed, when one spouse owns a business with others, or when the spouses are in business together. It can be difficult to determine and prove a self-employed spouse’s income accurately.

If just one spouse owns the business, it may or may not be considered marital property.This depends not only on when the business was formed or purchased, but also on whether marital assets have been invested in the business during the marriage. Disposition of the business may be governed by a prenuptial agreement, or if the business-owning spouse has partners, the non-owner spouse may have been asked to sign a waiver. If the business is considered marital property, you will need to have the business appraised.

If the couple owns a business together, they will have to decide whether they want to enter into an agreement to continue running the business together, sell the business and divide the proceeds as marital assets, or for one spouse to continue running the business and the other to receive other property to compensate for the value of their share of the business. All of this requires a clear understanding of the value of the business and the latter option may depend on there being sufficient marital assets to balance the scales.

Our Attorneys Have Extensive Experience with Complex Property Division Cases

If you have significant marital assets, you expect a dispute over whether assets are separate or marital property, you or your spouse owns a business, or there are other complex issues in your divorce case, you’ll want a law firm that knows how to handle the tough issues and how to work with experts on valuation, share of commingled assets and other issues.

At Peskind Law Firm, we have that experience. We’re here to help you with every aspect of your divorce case, including complicated property division issues. To learn more about how we can help, call 630-444-0701 right now, or fill out our contact form.