June 28, 2022
Divorces in Illinois will involve property division, which means all assets and debts will be classified as separate property or marital property. All assets and debts that are separate will not be divided, but all marital property will be subject to distribution between the spouses based on the theory of equitable distribution. Under the Illinois Marriage and Dissolution of Marriage Act (IMDMA), most property acquired after the date of the marriage will be divisible marital property unless an exception applies. Exceptions typically include property excluded by a valid premarital agreement, property acquired during the marriage with separate assets, or property acquired during the marriage through an inheritance or gift from a third party.
Since Illinois is an equitable distribution state, all marital property will be divided in a way that the court determines is equitable (or fair) to the spouses based on their circumstances and the facts of the case. Yet many different complications can arise in property division. The following are some of the most common complications.
Some types of property are notoriously difficult to value and appraise. In these circumstances, the value of assets might fluctuate significantly in market value (such as artwork, for example), or it may be difficult to find a specialist appraiser to help ascertain the value of a particular asset. It will be particularly important to work with a lawyer who has experience dealing with complex assets in divorce cases.
When separate property and marital property becomes mixed or “commingled,” it can be difficult to trace out the amount or percentage of separate property versus the amount or percentage of marital property. Only marital assets will be divided. Property can become commingled in a variety of ways, such as by investing separate assets into a marital asset like a primary residence or vacation home, or by helping the value of a separate asset to increase during the marriage due to work by both spouses.
Property division can be complicated and difficult when one spouse attempts to hide or conceal assets that would be classified as marital property and divided. It may be necessary to work with a forensic accountant to track down hidden assets to ensure that they are properly valued and included as part of your divorce case.
Prenuptial agreements, also known as premarital agreements, can be used to exclude certain assets or debts from property division in the event of a divorce. However, in order for such assets or debts to be excluded, the prenuptial agreement must be enforceable. Complications can arise when there are questions about the enforceability of a premarital agreement due to duress or other related concerns.
Do you have concerns about dividing complex property, or are you worried that your spouse is trying to conceal assets? An experienced Illinois divorce lawyer at our firm can assist you. Contact Women’s Divorce & Family Law Group today for more information about the family law services we provide.