Marital Property Nuts and Bolts

 Posted on September 04, 2014 in Family Law

Division of property is often one of the most significant issues faced by divorcing couples. What the court considers property and how it will be divided between the parties can be complicated, and anyone currently going through this process should seek the help of a skilled family law attorney.

What is Considered Marital Property

Under Illinois law, all property owned between the parties and acquired during the marriage is considered marital property, no matter who purchased the property or which spouse holds the title or deed; this is the property that must be divided at the time of divorce. Limited items can be considered non-marital property and automatically retained by one party.

Non-marital property is considered:

1. Any property received as a gift or inheritance;
2. Any property received in exchange for property that was acquired before the marriage;
3. Any property acquired after the court issues a judgment for legal separation;
4. Any property that you have excluded by agreement (usually through a prenuptial agreement);
5. Any property that has previously been awarded by judgment; or
6. Any property acquired by one party prior to the marriage.

 Freezing Marital Property During the Divorce

If you are worried about your spouse wasting or hiding high-value assets during the separation period or divorce, you may want to consider acquiring a “dissolution of stay,”which allows you to freeze your marital assets while completing your divorce. This action pertains to both parties and keeps both parties from transferring, destroying, damaging, spending, hiding, disposing, or selling marital property. However, this order does not freeze your bank accounts or other property used in the usual course of business. You can still use your credit cards, bank accounts, cars, home and other necessities in order to maintain the status quo.

 Retirement Funds

Most married couples also have marital property held in retirement funds. These funds can be held in pension funds, 401(k)s or IRAs. Even though these funds are held by a third party (the pension fund administrator or IRA company), the funds are still marital property. It can be difficult to calculate the amount due to a marital party because the account holder may have contributed funds prior to marriage and will continue to distribute funds after the marriage has ended. For these types of assets, a Qualified Domestic Relations Order (QDRO) is necessary to accurately divide the property. For IRA and 401(k)s, the funds that are marital can be separated immediately and transferred into a separate account for the non-fund holder. For pension plans, the funds will not be distributed until the account holder retires. At that time, the fund will separate out the portion belonging to the non-account holder for each payment, and will then send that money directly to the non-account holder. Each company requires different language in the QDRO, which is why it is important to have a qualified attorney complete this paperwork so that there is no problem with receiving your money when it is due.