The Land of Lincoln is an equitable distribution state, and “equitable” is not necessarily the same thing as “equal.” Although dividing property can be a drawn-out process, it is important to do it right the first time, because divorce decrees are rather difficult to undo later. For the most part, marital property division is a three-step process.
Locate
The parties typically exchange financial information, such as bank account records and tax returns, within a month or so after the petition is filed. However, these documents often give an incomplete profile of a person's financial status, either due to unintentional gaps in the records or the party's efforts to conceal assets.
There are a number of telltale signs that your attorney looks for, in order to pursue hidden assets. Some indicators include:
- Evasive or inconsistent answers to financial questions,
- Regular account statements that are suddenly redirected to a different email address or stop coming altogether,
- Correspondence addressed to unfamiliar business entities, and
- Unexplained changes in account balances.
There may be a perfectly innocent explanation for all these things, but their existence is a signal for a diligent attorney to dig a little deeper and ask more questions.
Classify
Section 503(a) of the Illinois Marriage and Dissolution of Marriage Act clearly defines the difference between “marital” and “non-marital” property. In a nutshell, non-marital property is anything acquired before the marriage or by gift.
Pragmatically, however, the difference is not always so clear cut. Assume that a wife buys a car shortly before the marriage, and continue to use funds from her paycheck to make the payments. Although the car itself is non-marital property, the money from her paycheck is marital property and should be subject to property division.
In cases like this, funds are commingled, and ownership must be clearly established. Typically, the contributing estate – in this case, the marital estate – is entitled to reimbursement for the value of its contribution to the receiving estate.
Divide
In this phase, the court must consider a number of factors. Some of the more prominent considerations include:
- Duration of the marriage;
- Valid agreements between the parties, including prenuptial and postnuptial agreements;
- Current and future economic circumstances of the spouses;
- Spousal maintenance; and
- Custody of minor children.
The judge must divide property in a manner that will not create an unreasonable financial burden for either spouse. This includes such concerns as maintaining payments on the marital home and tax liabilities resulting from the allocated assets.
Property must be located and classified before it can be properly divided. For a consultation with a thorough Naperville divorce attorney, contact our office. Our firm has been a fixture in downtown Naperville since 1973.