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 property if:
- 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, bills, etc.
- 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.