Hidden Assets in an Illinois Divorce: Homes and Businesses Your Spouse Gets to Keep as Non-Marital Property in Your Illinois Divorce.

 Posted on May 19, 2016 in Family Law

On April 7, 2016 The Huffington Post reported that Gov. Rick Scott, a Republican, signed a bill on repealing a law that has been on the books since 1868. The law made it a second-degree misdemeanor for an unmarried man and woman to “lewdly and lasciviously associate and cohabit together.”

I can only say hooray for Gov. Scott for finally attempting to move the State of Florida somewhat closer to the 21st century!

It seems that Florida in fact trumps Michigan and Minnesota, if you’ll pardon the expression, which still do not legally allow unmarried couples to cohabit.

Staying an unmarried couple may sound good for many people. You hear frequently: “What do we need marriage for if we don’t have children?” Short answer: to receive your share of the marital assets and perhaps maintenance (alimony).

In Illinois, a married spouse is entitled to a share of any asset acquired by the other spouse earned during the marriage. Simply put, earned real estate, savings, stocks, and retirement accounts, even in one spouse’s name during marriage, are divided upon divorce. Without marriage, a selfish spouse may simply keep those assets in his or her name, assured that you receive no part of them upon divorce.

In addition, without marriage you have no case for maintenance. Upon the divorce of a married couple, a stay-at-home spouse usually qualifies for maintenance.

Beginning January 1, 2016, Illinois has guidelines for the amount of maintenance, as well as how long you receive it, which are based upon the length of time you were married. Therefore, not marrying carries with it penalties for the stay-at-home spouse.

Why You May Want to be Married

In my 35+ years of experience as a divorce lawyer I can tell you why you may want to be married. Take Jane for example: she and Sam cohabited together for 10 years and had two children. During that time, Sam purchased a home which he kept in his own name and also developed a thriving business. The parties then married and stayed together for another five years.

At the time of their divorce, Sam’s position was at the home that he had purchased— not marital property—and it should be exclusively awarded to him in their divorce. Jane would receive no part of it, according to Sam. The business, of course, Jane worked in. But she received a salary. Since the business was purchased by only Sam before the marriage, and it became valuable while they cohabited, Jane was not entitled to receive any part of the business at the time of divorce.

Jane’s best case argument was for reimbursement of some sum of money for the work she did in the business above and beyond her salary. Unfortunately, that argument is hard to quantify. It is much easier for an Illinois divorce judge to simply say the business is Sam’s non-marital business and perhaps give Jane some maintenance, a.k.a. alimony, to compensate her.

But wait—Illinois has a new alimony maintenance statute that has a guideline amount for maintenance setting forth both the amount of maintenance and the length of time it lasts. Because Jane has only been married to Sam for five years, she receives only one year of maintenance. If she were married the entire 15 years of the time they lived together, then she would be entitled to nine years of maintenance. Additionally, if she had been married for 20 years, she would be entitled to permanent maintenance. Living together without marriage sounds romantic, but unfortunately it has been used by spouses who put money above everything else to unfairly profit from unmarried cohabitation.

What is the Solution for the Janes of the World?

The solution is to get a premarital or even a postnuptial agreement if you are recently married but have lived together for many years. All of the things that you would be entitled to, had you been married the whole time, you could receive by way of agreement. Again, the key word here is “agreement.” Therefore, the very reason that your spouse did not want to get married may have been to keep you from receiving your fair share if there was a divorce.

Remember: truth is hard to find in divorce cases. However, our skilled Hinsdale divorce attorneys at Martoccio & Martoccio know where to look and how to find the truth for you. Please call us at 630-920-8855 so we can show you how to protect yourself from hidden asset schemes.