Figuring Out Commingled Property in Illinois

 Posted on November 09, 2015 in Property Division

Under Illinois law, judges are required to equitably divide marital property in a divorce. This means that before a judge can figure out how to divide property, a court must first decide whether property is marital property. It is important for divorcing couples to understand how the court will view commingled property and the consequences of commingling property—a process that can be aided by an experienced attorney. 

Fair Division is not Equal Division

It is important to understand that fair division of property does not mean property will be split equally; instead, courts will divide property so that the division is fair to the couple under the circumstances of the divorce. And ultimately, the difference between marital and non-marital property is not always clear. 

Non-Marital Property

In Illinois, there are several types of property that are not considered marital. Generally, property acquired by one spouse before the marriage and any value increases or income from the property are not considered marital property. Non-marital property includes: 

• Gifts or inheritances;
• Property awarded after a legal separation;
• Property awarded under a prenuptial agreement; and
• Property purchased by one spouse before the marriage. 

While these examples are very specific, property does not always remain non-marital. Oftentimes, couples mix non-marital property together with property they both own, or with property that the other spouse owned separately. 

How Did We Commingle Our Property?

Couples commingle assets when they mix non-marital property with marital property or with the other spouse’s non-marital property. Examples of commingling property include: 

• Couples use separate checking accounts that are used by both spouses for deposits and withdrawals;
• A couple refinances a home inherited by one spouse, and both spouses are placed on the title; or
• One spouse buys land but both spouses pay to maintain the land.

Dividing commingled property can be difficult especially when the commingling was not intentional. 

What Happens to Commingled Property?

Courts will encourage a divorcing couple to agree on a property division. When a couple cannot agree, a court will evaluate the circumstances of the couple and make a decision. Judges have the authority to decide if commingled property was a gift to the marriage and divide the property with the rest of the couple’s marital property. Alternatively, a judge may determine property remains separate, and that one spouse must compensate the other partially, or fully, for the value or benefit of the commingled property.

Contact an Attorney

Property division is complex whether property was intentionally or unintentionally commingled. Despite this complexity, it is important to work with an attorney who understands how courts will divide commingled property. If you are considering a divorce and want guidance on how to deal with property division, you should contact the skilled DuPage County divorce attorneys at Davi Law Group, LLC. We can help you go over your assets and help you make the best decisions regarding property division. Please contact us at 630-580-6373 to discuss how we can help you.  

Source: 

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2086&ChapterID=59&SeqStart=6000000&SeqEnd=8300000