Property division is one of the most notoriously contentious, complex,
and frustrating parts of divorce—but it doesn’t have to be
that way. Sure, there’s bound to be a squabble or two over who gets
what, but there are a few things you can do early on that can save you
a lot of hassle when it comes to splitting up your assets.
Distinguish Personal Property from Marital Property
One major sticking point of many couples’ divorce is the distinction
between property that is shared by the couple and property that rightfully
belongs to one person. A certain asset or possession may be your personal
- You owned it before marriage.
- It was gifted to you by your spouse.
- You obtained the property but did not use it as shared property or incorporate
it with your shared accounts, possessions, etc.
- You and your spouse have declared in writing via post-nuptial agreement
that the property in question is not shared.
- You acquired the asset or possession as part of an inheritance.
- Punitive damages recovered in a personal injury lawsuit.
However, the property in question may be shared property if:
- You or your spouse obtained it during the time of your marriage.
- You and your spouse have treated it as shared property via transmutation,
joint accounts, or using it for shared expenses such as groceries, healthcare,
- You paid or are paying for that property with shared funds.
If you wish to hold on to a certain asset that you believe to be yours
and yours alone, it may become necessary that you demonstrate your total
ownership over that property. For this reason you should seek out official
documentation of ownership whenever possible, whether it be a receipt,
a transactional record, a letter from a deceased relative stating that
they wished to bequeath a certain asset to you, etc.
It is also important to dialogue as much as possible with your spouse about
who owns what before it becomes a court battle. If you bring in an experienced
divorce lawyer, you may still be able to negotiate with your spouse or
achieve a desirable settlement through mediation, arbitration, or other
out-of-court methods. However, it will make the process much smoother
if you and your spouse agree on as much as possible beforehand. In some
cases, if you and your spouse are at a stalemate over ownership of a smaller
or relatively less significant piece of property, such as furniture or
household gadgets, there may be viable alternatives to duking it out in
court. These may include selling it and splitting the proceeds, holding
an auction, or leaving it to chance by flipping a coin or picking a number.
Property Division in Illinois Divorces
Illinois courts do not often divide couples’ property straight down
the middle. We have what is known as an equitable distribution state,
which means the court seeks to divide property based on fairness, rather
than implementing a 50/50 split. In determining fair division of property,
an Illinois court may consider either spouse’s relative fault and
contributions to the reasons for divorce. If one spouse is guilty of adultery,
abuse, or other action that the court may deem morally reprehensible or
wrong, they may leave the marriage with less than half of all marital property.
I Will Fight for a Fair Settlement in Your Divorce.
As an experienced Westlake Village divorce attorney, mediator, and judge
pro tem, I know what it will take to help you hold on to what is rightfully
yours during your divorce. With more than three decades of experience,
I am prepared to offer you accessible legal counsel, tailored service
based on your unique needs, and a better shot at a desirable settlement.
Contact a member of my firm by calling the Law Offices of Jeffrey S. Graff
at (805) 633-4999 today. You can also fill out this short online form
to receive your complimentary consultation.