How Does a Judge Divide the Property? Equitably not Necessarily Equally.

When a Judge divides property, he or she follows 3 simple sounding steps.  First, determine if the property is marital or non-marital.  Second, assign each party their non-marital property. Third, apply the factors identified in the statute and divide the marital property fairly.

In my last post I described marital and non-marital property before the recent law change.  Here I will describe the current definitions of marital and non-marital property.

“Marital property” is all property and debt acquired by either spouse between the marriage and

the divorce unless the property is classified as “non-marital property”.

Non-marital property is:

(1) property acquired by gift, or inheritance;

(2) property acquired in exchange for property acquired before the marriage;

(3) property acquired after a judgment of legal separation;

(4) property excluded by a valid premarital or postnuptial agreement;

(5) any judgment awarded to a spouse from the other spouse, except, when a spouse is required to sue the other spouse in order to obtain insurance coverage or from a third party and the recovery is directly related to amounts advanced by the marital estate, the judgment shall be considered marital property;

(6) property acquired before the marriage, except as it relates to retirement plans that may have both marital and non-marital characteristics;

(6.5) all property acquired by a spouse through the sole use of non-marital property as collateral for a loan that then is used to acquire property during the marriage; to the extent that the marital estate repays any portion of the loan, it shall be considered a contribution from the marital estate to the non-marital estate subject to reimbursement;

(7) the increase in value of non-marital property; and

(8) income from property acquired by a method listed in paragraphs (1) through (7) of this subsection if the income is not attributable to the personal effort of a spouse.

It is the job of the party claiming that a piece of property is non-marital to prove that the property does in fact fall into a category outlined in numbers 1 through 8, above.  As such, records showing when accounts were opened, what gifts were given, and what inheritances were received are key.

Additionally, when you add one type of property to the other type of property (say during the marriage building a new garage on a non-marital farm) the contributing estate (the marital estate) can get reimbursed for the contribution (the value of the garage) from receiving estate (the non-marital estate) provided the contribution can be shown by clear and convincing evidence.  As it was with non-marital property, it is the party asking for reimbursement who has the job of showing what funds or property was contributed, so keep or obtain records.

Once the Judge has determined what is marital and non-marital, the Judge is required to  assign each party their non-marital property, and then the Judge divides the marital property after considering the following factors:

(1) each party’s contribution to the acquisition of marital property (including the contribution of a homemaker);

(2) any dissipation by a party (money spent for the sole benefit of one party for purposes unrelated to the marriage while the marriage is breaking down);

(3) the value of the property assigned to each party;

(4) the length of the marriage;

(5) the economic circumstances of each party;

(6) any obligations and rights arising from a prior marriage of either party;

(7) any prenuptial or postnuptial agreement of the parties;

(8) the age, health, occupation, amount of income, employability, liabilities, and needs of each party;

(9) how much time does a party have the children;

(10) whether a specific division of property is in lieu of or in addition to maintenance;

(11) can a party obtain more property in the future; and

(12) the tax consequences of the property division.

Most of the factors are self-explanatory, but I will directly address a few of the factors listed above.  In my experience the Judge will consider whether a party contributed non-marital funds or property to marital property (ie. pay down the mortgage on a marital residence with an inheritance).  In that instance the closer in time the contribution is to the filing for a divorce, the more likely the Judge will “give” a majority of the contribution back to the party making the contribution by awarding that party more of the marital estate.

Dissipation is another significant factor the Judge will consider.  If dissipation is proved, the Judge will treat the marital estate as if the funds were still there and “credit” the dissipating party with the funds already spent in any division.  As such the non-dissipating party will receive a larger portion of the marital estate which is still there.

The economic circumstances of each party include the amount of non-marital property a party owns.  If one party has a substantial amount of non-marital property and the other party has none, the party with no non-marital property will likely get a larger portion of the marital property.

Property Allocation Lawyer in Kane and Kendall Counties, Illinois

To contact a reliable, skilled, and professional lawyer to learn more about steps you can take to prove your case for property division, call 630-232-7306 to contact the Law Office of Warren G. Sylvester, P.C., to schedule your free consultation.