Tag Archives: property division

IL divorce lawyerDivorce forces you to think about your future, what you want it to look like, and how to protect and prepare yourself for it. While trying to place yourself in the best position possible once your divorce is finalized, you may try anything to keep your family home. The marital home is typically the biggest asset in any divorce and one that often both spouses wish to keep. Before you enter into a fight regarding the home, there are some very important questions you must ask yourself.

Is the Home Marital Property?

Under Illinois’ property division laws, marital property is subject to equitable division. This means that if you and your spouse purchased the home together after you were married, the court will divide the home fairly, although not necessarily equally. If you or your spouse bought the home alone before marriage, on the other hand, it is separate property and the purchaser can keep it outright. Typically, family homes are considered marital property, although that is not always the case.

Do You Have a Premarital Agreement?

More and more couples today are entering into premarital agreements prior to marriage. If you and your spouse did this and the home was mentioned in the agreement and the agreement is deemed enforceable by the courts, the terms included in the agreement will stand, even if it is no longer your preferred outcome.

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IL divorce lawyerIt is always a difficult situation when two people get divorced and, at least until it is final, have to live in the same home. There is typically tension between the two parties, and that stress can filter throughout the house. When children are involved, they can feel it too, and that can become unhealthy. In some instances, it may be possible for one spouse to evict the other from the marital home and take exclusive possession of it. Unfortunately, this is not easy to do. An Illinois divorce lawyer can help individuals that wish to take exclusive possession of their home.

Exclusive Possession Under the Illinois Marriage and Dissolution of Marriage Act (IMDMA)

The Illinois Marriage and Dissolution of Marriage Act (IMDMA) allows for one spouse to seek exclusive possession of the marital home in certain situations. The requirements to warrant exclusive possession under this Act though, are quite strict. This type of possession is only granted when one spouse is in fear of their mental or physical welfare or the welfare of their children.

It is important to understand that the stress of living with another spouse is not enough to warrant exclusive possession. There must be a genuine fear that living with a spouse will place a person or their children in jeopardy. However, individuals that obtain exclusive possession can temporarily evict their spouse, and even change the locks if they wish.

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IL divorce lawyerWhen getting a divorce, couples have a lot to think about. They will likely wonder what will happen to their car, to the marital home, and other assets. One factor that is often overlooked though, is the family pet. If the pet was acquired during the marriage, it is considered marital property. So, when this is the case, what happens to the pets in an Illinois divorce?

Pets According to Property Division Rules

In many cases, the courts may choose to include the pet in property division hearings. This means it will be treated just like other property. Illinois is an equitable distribution state. That means that property is divided fairly, although not necessarily equally. Of course, a pet cannot be divided, leaving many couples again wondering what will happen to it in a divorce.

If one of the spouses really wants to keep the pet and both spouses can agree, the courts may grant ownership to the spouse that wants to keep the animal. In exchange, the courts will also likely grant the other spouse a greater portion of other property or assets, in order to keep property division hearings fair.

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IL divorce lawyerMany people get married without creating a prenuptial agreement. Then, maybe a few years or even a few days after the wedding, they determine that they need a bit of protection in case they get divorced. Maybe they have started a business that is hugely successful. Or, maybe they just did not realize how much they needed a prenuptial agreement before the big day. Whatever the reason, now the couple understands that they need to protect their assets. So, they start thinking about drafting a postnuptial agreement.

When this is the case, the couple may decide to simply draft an agreement on their own and sign it. That is perfectly legal and, if done right, enforceable. However, doing it right is key. An Illinois family lawyer can help with this and ensure that in the event that the worst happens, everyone is protected. Below are just two reasons you should not draft a postnuptial agreement without first speaking to an attorney.

An Attorney Will Ensure You Are Protected

Postnuptial agreements are legal documents that, when done right, can help protect both spouses. However, when they are not done right, postnuptial agreements also pose risks for both spouses. Postnuptial agreements are legally binding documents and so, neither spouse can remove themselves from the terms later on simply because they do not like them, or because they did not read or fully understand what the contract said.

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IL divorce lawyerWhen a marriage ends in divorce, it involves a series of difficult decisions, not the least of which are the decisions regarding property division. It would be more comfortable and less time consuming if a couple were able to discuss the matter amicably. However, many couples cannot agree when it comes to dividing property, assets, and debts. If you are unable to reach an agreement, a judge will do so for you. A judge will make their decision after weighing the following factors:

Marital vs. Non-Marital Property

Any property acquired during the tenure of the marriage is considered marital property. Illinois courts do not have jurisdiction over the non-marital property, which is any property earned or otherwise accumulated before the union began. After determining marital property, the judge then divides it into what is considered “fair and equitable.” Fair and equitable is not to say that the property splits equally, but rather by what is a “just proportion.” Prime examples of property not included in marital property are:

  • Property owned by a spouse before the marriage,
  • Anything received by one spouse by gift or inheritance, and
  • Restrictions based on a prenuptial or postnuptial agreement.

The Family Home

One of the most significant purchases a couple makes together is the family home. Since both parties are often significantly invested either through time, money, or improvements, it is complicated to determine a fair and equitable split. Common outcomes include:

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