Illinois Division of Assets: Why Title Does Not Trump All

 Posted on December 00, 0000 in Division of Property

My spouse and I have been married 15 years. I want to get a divorce, but I have been a stay-at-home mom for the past 10 years. I have no money, and everything is in my spouse's name. I do not know how I will be able to start over from scratch.

Questions similar to the one above are often posted to social media and divorce-related websites, and understandably, those in these situations are concerned. When it comes to divorce, there is a difference between marital and separate property, and separate property is not involved in the division of property. But simply because one spouse's name is not on a title does not make it separate property.

Property Division in Illinois Divorce

Illinois is an equitable distribution state, which means that marital assets are awarded in a manner that is most fair under the circumstances — not via a 50-50 split.

Any property a person owns when he or she enters into a marriage is separate property, including any inheritances or gifts received during a marriage. Additionally, any property purchased with separate property is also deemed separate property. Separate property is not subject to equitable distribution and is awarded to the party who owns it.

For example, if a wife enters a marriage with a $50,000 savings account, and during the marriage, she uses $20,000 to buy herself a motorcycle. The motorcycle continues to be her separate property because she purchased it with her separate funds. This is a straightforward example; however, there is confusion over what constitutes separate property. Many believe that title trumps all. Nonetheless, how an asset is titled is simply a starting point in a Court’s determination of whether an asset is marital or separate property. Separate assets can become marital assets, without the other spouse’s name ever being added to the asset.

In the question above, a wife states that everything is in her husband’s name. There are a number of factors, however, that could cause a house (or any other asset) to be considered marital. These factors include the following:

• Whether the home was used as the family home;
• Whether marital funds were used for the care and upkeep of the home;
• The duration of the marriage; and
• Contributions of separate property to the asset, including the spouse’s contribution as a homemaker.

If any of these factors are present, a Court could declare the asset to be marital, and thus make it subject to division.

Palatine Division of Property Attorney

Division of property in divorce cases is not always simple. Property believed to be separate may actually be marital. In addition, certain assets, like some retirement benefits, have specific rules that must be followed in order to be properly divided. Hence, if you are getting divorced, retaining an experienced Palatine divorce attorney to review your case is essential. Nicholas W. Richardson has more than 10 years of experience handling divorce and property division, and he will fight to ensure that your settlement is fair and equitable. Contact the Law Office of Nicholas W. Richardson, P.C. to schedule an appointment to discuss your case.