North Shore Experienced Property Division Lawyer near Round Lake Beach
As an experienced property and debt division attorney serving clients in the North Shore area, in both Lake and Cook County, with an office near Round Lake Beach and Lake Villa, I can help you navigate the intricacies of property division. I’ll ensure your rights are protected and you receive a fair share of marital assets. I can assist in classifying and valuing assets, negotiating settlements, and representing you in court if necessary. With the potential complexities of property division, including hidden assets, dissipation claims, or contentious valuations, I’ll ensure that the process is handled precisely, somewhat, and in compliance with the law. I’ve tried to answer the most common questions I get from clients about asset and debt division below:
What is property division in divorce, and why is it essential?
In Illinois, property division in divorce is governed by the Illinois Marriage and Dissolution of Marriage Act (IMDMA). The IMDMA provides that all marital property is to be divided equitably between the spouses, regardless of who owns the property. Marital property is defined as all property acquired by either spouse during the marriage, except for the following:
Property acquired by gift or inheritance
Property acquired before the marriage
Property acquired by one spouse after the separation of the parties
Property that is the separate property of one spouse by agreement of the parties
The court will consider several factors in determining how to divide marital property equitably, including:
The length of the marriage
The contributions of each spouse to the acquisition of the property
The economic circumstances of each spouse
The needs of each spouse
The desirability of maintaining the marital home as a residence for any minor children of the marriage
Property division is a fundamental aspect of divorce proceedings, allocating assets and debts between spouses. Illinois it's governed by the principle of equitable distribution, aiming for a fair but not necessarily equal division. The importance of this process cannot be overstated, as it establishes the financial foundation for both parties post-divorce, directly affecting their quality of life, ability to make future investments, and overall financial security. It's a complex process that requires careful consideration of various factors to ensure fairness and compliance with state laws.
What's the difference between marital and non-marital property? How are they determined?
In Illinois, marital property is all acquired by either spouse during the marriage, regardless of how it is titled. Non-marital property is all property acquired by either spouse before or after marriage by gift, inheritance, or devise.
Marital property is divided equally between the spouses in a divorce unless a prenuptial agreement states otherwise. Non-marital property remains with the spouse who acquired it.
There are a few exceptions to the definition of marital property. For example, property acquired by one spouse with separate funds is considered non-marital property, even if used during the marriage. Additionally, property that is considered to be "quasi-marital" may be divided equally in a divorce. The quasi-marital property was acquired during the marriage but only titled in one spouse's name.
Determining marital and non-marital property can be complex, so it is essential to speak with an attorney if you are going through a divorce.
What factors does the court consider in property division?
When a couple gets divorced in Illinois, the court will divide their property according to the following factors:
The contribution of each spouse to the property acquisition, including the contribution of a spouse as a homemaker.
The value of each spouse's separate property.
The economic circumstances of each spouse at the time of the division of the property, including the income, expenses, and earning capacity of each spouse.
The needs of each spouse and the minor children of the marriage.
The length of the marriage.
The conduct of each spouse during the marriage.
Any other factors the court considers equitable.
The court will also consider the following factors when dividing debts:
The nature of the debt.
The amount of the debt.
The ability of each spouse to pay the debt.
The purpose of the debt.
The time when the debt was incurred.
The conduct of each spouse in incurring the debt.
Any other factors the court considers equitable.
The court will decide about property division based on the facts of each case. There is no set formula for dividing property, and the court will consider all the factors listed above.
How is the property divided? What are the standard methods?
Property is divided in Illinois in several ways, depending on the circumstances. The most common methods are:
Intestate succession: When a person dies without a will, their property is divided according to intestacy laws. The state sets intestacy laws, which vary from state to state. In Illinois, the laws of intestacy are outlined in the Illinois Probate Act. The laws of intestacy provide for the distribution of property to the deceased person's spouse, children, and other heirs. If the deceased person has no spouse or children, their property will be distributed to their parents, siblings, and other relatives.
Testate succession: When a person dies with a will, their property is divided according to the terms of the will. The will must be valid to be enforced. A will must be signed by the testator (the person making the will), and two people must witness it. The will can specify how the testator's property is to be divided. It can also appoint a guardian for the testator's minor children.
Partition: Partition is the division of property that two or more people own. Partition can be done through a court order or agreement between the parties. If the parties cannot agree on partitioning the property, they can file a partition action in court. The court will then divide the property according to what it believes is fair.
Equity distribution: Equity distribution is the property division between divorcing spouses. The court will consider several factors, including the length of the marriage, the contributions of each spouse to the property, and the needs of the children. The court will then divide the property in a way it believes is fair.
Eminent domain: Eminent domain is the power of the government to take private property for public use. The government must pay the owner a fair market value for the property.
Forfeiture: Forfeiture is the taking of property used for illegal activity. The government can seize the property without paying the owner any compensation.
How are debts handled in the property division?
In Illinois, debts are handled in property division in a few different ways. The most common way is through equitable distribution. This means that the court will divide the debts fairly, taking into account factors such as the length of the marriage, the contributions of each spouse to the debts, and the economic circumstances of each spouse.
Another way that debts can be handled in the property division is through reimbursement. This means that one spouse may be required to reimburse the other for debts incurred during the marriage. For example, if one spouse took out a loan to pay for school, the other spouse may be required to reimburse them for that loan after the divorce.
Finally, debts can also be handled through consolidation. This means that the debts of both spouses can be combined into one loan, which both spouses will then pay off. This can be a helpful option if the spouses have a lot of debt, and it would be challenging to pay off each debt individually.
The property division's specific way that debts are handled will depend on the case's specific circumstances. I would like to speak with an attorney to discuss your options and get advice on handling your debts in the divorce process.
Here are some additional things to keep in mind about how debts are handled in property division in Illinois:
Debts incurred before the marriage are not typically considered marital debts and are not subject to division in the divorce.
Debts incurred for the family's benefit, such as a mortgage or car loan, are typically considered marital debts and will be divided in the divorce.
Debts incurred for one spouse's personal use, such as credit card debt, are typically considered separate debts and will not be divided in the divorce.
The court may order one spouse to pay off all marital debts, even if the other spouse is also responsible. This is known as "charging order."
The court may also order one spouse to pay off all of the other spouse's separate debts, even if the other spouse can pay off the debts on their own. This is known as a "reimbursement order."
Can couples negotiate property division without going to court?
Yes, couples can negotiate property division without going to court in Illinois. There are several benefits to negotiating property division without going to court. First, it is usually much faster and less expensive than going to court. Second, it gives the couple more control over the divorce terms. Third, it can help to preserve the relationship between the couple, especially if they have children.
However, there are also some risks to negotiating property division without going to court. First, if one party is not honest about their assets or debts, the other party may not get what they are entitled to. Second, if the couple cannot agree on the divorce terms, they may have to go to court anyway. Third, if the couple has children, it is essential to have a court order that addresses child custody and support.
If you are considering negotiating property division without going to court, speaking with an attorney to discuss your options is essential. An attorney can help you understand the risks and benefits of this approach and can represent you if you decide to go to court.
Here are some tips for negotiating property division without going to court:
Be prepared. Before negotiating, list all the assets and debts you and your spouse own. This will help you to have a clear understanding of what is at stake.
Be fair. When negotiating, try to be fair to both yourself and your spouse. Remember that you are both trying to reach a solution that is in your family's best interests.
Be flexible. Be willing to compromise on some issues to reach an agreement.
Get help from a mediator. If you are having trouble negotiating independently, you may want to consider hiring a mediator. A mediator is a neutral third party who can help you and your spouse reach an agreement.
Be patient. It may take some time to reach an agreement, so be patient and don't give up.
If you can negotiate property division without going to court, it can be a great way to save time and money. However, being prepared and understanding this approach's risks and benefits is essential. If you have any questions or concerns, please don't hesitate to reach out.
What role do financial experts play in property division?
Financial experts play a vital role in property division. They can help assess the value of assets, identify potential sources of income, and develop a fair and equitable property division.
Assess the value of assets: They may review financial statements, tax returns, and other documentation to determine the fair market value of assets. They may also conduct appraisals or other analyses to determine the value of specific assets.
Identify potential sources of income: They may review tax returns, financial statements, and other documentation to identify income available to each spouse. They may also help to develop a plan to generate income for each spouse after the divorce.
Develop a fair and equitable division of property. They may consider the factors listed in the Illinois Marriage and Dissolution of Marriage Act and the specific circumstances of each case. They may also help to negotiate a settlement agreement or prepare for a trial.
Financial experts can provide valuable assistance to divorcing couples. They can help ensure that the property division is fair and equitable and that both spouses can meet their financial needs after the divorce.
In addition to the above, financial experts can also help to:
Identify and protect assets exempt from division, such as retirement accounts and pensions.
Negotiate a settlement agreement that is fair to both parties.
Prepare for trial and testify as an expert witness.
Help implement the divorce decree terms, such as alimony and child support payments.
If you are considering divorce, speaking with a. financial expert to discuss your protect your assets and financial interests is essential.
How are intellectual property rights and professional degrees handled?
One of the most important factors is the date of the marriage. If the intellectual property rights or professional degrees were acquired before the marriage, they are considered separate property and not subject to division. However, if acquired during the marriage, they are considered marital property and will be divided equitably.
Another important factor is each spouse's contribution to acquiring intellectual property rights or professional degrees. If one spouse made a more significant contribution, the court may award that spouse a more significant asset share.
The court will also consider the economic circumstances of each spouse, including their income, assets, and debts. The court will try to divide the assets fairly and equitably for both spouses.
In some cases, the court may order one spouse to pay alimony to the other. This may be the case if one spouse has a lower earning potential than the other spouse due to the division of intellectual property rights or professional degrees.
What if one spouse hides assets? What are the consequences?
In Illinois, if one spouse hides assets in a divorce, the other spouse can file a motion for sanctions against the hiding spouse. Sanctions can include:
Monetary damages
Attorney fees
Injunctions against the hiding spouse
Contempt of court
The court may also order the hiding spouse to pay the other spouse's attorney fees and costs. In addition, the court may issue an injunction against the hiding spouse, preventing them from disposing of any assets or transferring them to another person. The court may also hold the hiding spouse in contempt of court, which can result in fines, jail time, or both.
The consequences of hiding assets in a divorce can be severe. If you are considering hiding assets in a divorce, it is essential to speak with an attorney to understand the risks and potential consequences.
Here are some additional things to keep in mind:
It is illegal to hide assets in a divorce.
If caught hiding assets, you may be ordered to pay your spouse's attorney fees and costs.
You may also be ordered to pay a fine or go to jail.
Hiding assets can damage your relationship with your spouse and make it difficult to co-parent your children.
It is essential, to be honest with your spouse and attorney about your assets.
If unsure whether an asset is a marital property, you should speak with an attorney.
Hiding assets in a divorce is a severe breach of trust and legal obligation. Both spouses are required to disclose all assets and debts fully. If one spouse intentionally hides or undervalues assets, it can lead to severe consequences, including penalties, contempt of court, or a revised property division order. If you suspect hidden assets, an experienced asset and debt division lawyer can employ legal tools, such as discovery and forensic accounting, to uncover them, ensuring that the division process remains transparent and fair.
How are small businesses or family businesses handled in the property division?
If a small business or family business is involved in the divorce, the court will consider this when dividing the property. The court will consider factors such as the value of the business, the contributions of each party to the business, and the economic circumstances of each party. The court may also order that one party buy out the other party's interest in the business.
Dividing small or family businesses in a divorce can be particularly challenging. The business may need to be appraised for its current value, considering factors like assets, debts, income potential, and market conditions. Arrangements might be made for one spouse to buy out the other's interest, or the business might be sold. Other considerations include the ownership structure, contributions of each spouse to the business, and the impact on employees and ongoing operations. Tailored legal and financial expertise is often required to handle these complexities effectively.
How can prenuptial or postnuptial agreements affect property division?
Prenuptial and postnuptial agreements can substantially impact property division in Illinois divorce cases. Without such agreements in place, the standard protocol of equitable distribution kicks in. Marital property and debts accumulated during the marriage are divided fairly by the courts based on factors like financial contributions and the needs of the spouses.
Prenups and postnups allow couples to override the default rules and create their terms for property division. Spouses can designate certain assets through these legally binding contracts as separate non-marital property. Assets like pre-marriage homes or inheritances can remain under the sole ownership of the original spouse in the event of divorce.
Beyond separate property, prenups and postnups allow couples to customize the division of the marital assets themselves. Spouses can opt for an exact 50/50 split of marital property or structure percentages favoring one spouse. Prenups and postnups also enable spouses to modify typical court-ordered spousal support and maintenance guidelines by limiting or waiving obligations.
Premarital and postmarital agreements in Illinois give spouses greater certainty and control concerning property division, assuming they are entered voluntarily. By planning through contracts, couples can shape settlement terms to suit their unique needs and preferences, avoiding ambiguous equitable distribution outcomes. Properly formulated and executed, prenups and postnups can reshape asset distribution if divorce occurs.
What happens if one spouse dissipates marital assets?
If one spouse dissipated (wasted/misused) marital assets, the court can consider this when dividing property and debts. Some key points on the dissipation of assets:
The dissipating spouse has the burden of proving that the assets were spent for legitimate family expenses. If not proven, the court can assign the spent assets to that spouse when dividing property.
Dissipation involves one spouse using the marital property for personal benefit and for a purpose unrelated to the marriage when the marriage is undergoing an irreconcilable breakdown.
Examples of dissipation include gambling losses, excessive purchases, or reckless spending of marital funds. Transferring funds to hide money from the other spouse could also qualify.
Courts look at factors like the timing of the spending, whether it was typical behavior in the marriage, the reasons for the expenditure, and if the other spouse objected to or was aware of it.
The court can make a dissipation adjustment by assigning the dissipated amount to the spouse who misused the funds. So if $50,000 was dissipated, the court could assign that $50,000 to that spouse's column in the property division.
Dissipation can also be a factor in determining spousal support obligations. A spouse's dissipation of assets can decrease their need for support.
The dissipation of marital assets can significantly impact property division and support obligations in an Illinois divorce. The spouse who dissipated assets may receive a minor property award and less or no spousal support due to their financial misconduct during the marriage.
How does property division affect children in a divorce?
How property is divided in a divorce can affect minor children in several ways.
Standard of living: If one parent is awarded most of the income-producing assets or the marital home, the children may be able to maintain a similar standard of living in that parent's household. However, if the division of property is unfair and the children's standard of living decreases, this can hurt them.
College costs: Retirement accounts, investments, and other assets awarded to each parent can affect their ability to pay for college. The division of assets may determine if the children qualify for more financial aid.
Child support: Property division is a factor in determining child support payments. A parent with more assets or income may pay more child support, providing more resources for the child's expenses.
Housing stability: Assigning the marital home to the parent with primary custody can help to maintain a stable living situation and school for the children. Fighting over who gets the house can create upheaval.
Emotional security: A fair property division can help to prevent ongoing resentment between the parents. This can foster a more amicable co-parenting relationship, which is in the children's best interests.
Future inheritance: Assets awarded to each parent will eventually pass to the children. The overall property division can impact their inheritances.
Custody disputes: A transparent property settlement can help to prevent ongoing custody battles. Less conflict can reduce stress and uncertainty for the children, which is essential for their well-being.
Can property division orders be modified after the divorce?
In Illinois, property division orders can be modified after a divorce in certain situations. For example, the court may modify an order if there was a mistake in the original order, if there has been a significant change in circumstances since the order was issued, or if the order was obtained through fraud or coercion.
A material mistake in the original order affects the parties' substantial rights. This could include a mistake in calculating the value of the assets or a mistake in how the assets were divided.
A substantial change in circumstances would make the original order inequitable. This could include a change in the financial situation of one or both spouses or a change in the health of one or both spouses.
Fraud or duress is any intentional misrepresentation of a material fact with the intent to deceive or any coercion by using violence, threats, or intimidation.
If you are considering modifying a property division order in Illinois, you must speak with an attorney to discuss your options. An attorney can help you determine if you have a valid basis for modification and can represent you in court if necessary.
Here are some additional things to keep in mind about modifying property division orders in Illinois:
The burden of proof is on the party seeking to modify the order. This means you must provide evidence to the court that there is a valid basis for modification.
The court will consider all relevant factors when deciding whether to modify the order. This includes the original property division agreement, the change in circumstances, and the parties best interests.
The court may not be willing to modify the order if it would be unfair to one or both spouses.