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DuPage County family law attorney, guardian ad litemChildren are impacted by a divorce just as much as their parents, but their situation is also unique due to their age. Minors cannot represent themselves in court and are often too young to understand their own best interests, which is the paramount factor in determining parental responsibility allocation. In a contested case or under other circumstances, a judge may decide to appoint an advocate for the child. Under Illinois law, the court has three options:

  1. Attorney for the Child;
  2. Child Representative; or
  3. Guardian ad Litem.

Each of these positions carries its own powers and capabilities, so it is important to understand the role of the guardian ad litem if one has been appointed for minor children in your divorce.

Guardian Ad Litem (GAL) Defined

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DuPage County divorce attorneys, non-marital property, marital homeAbsent an agreement of divorcing parties regarding their assets, a court will make an equitable distribution of property to each spouse as part of the dissolution of marriage process in Illinois. However, before dividing up the items, it is necessary to establish which assets are considered “marital” and “non-martial” under state law. While the distinction may be clear-cut for certain assets, the line between the two types of property may not be as obvious for others. There are rules that establish the difference between marital and non-marital property in Illinois, so discuss your specific circumstances with an attorney that has experience in property divisions in Illinois divorces.

Assets Included in Marital Property

The general rule is that all property acquired by spouses during their marriage is considered marital property. Hence, the property will be equitably divided throughout the divorce process. A court does not look to actual title and name associated with an asset in determining whether it qualifies as marital property. Typically, any item you come by during marriage will be included in marital property, including:

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Posted on in Divorce

DuPage County property division attorneys, family heirloomsDividing property can be a very stressful part of a divorce. There may be some items of sentimental value to you that you want to keep, and there are certain steps you can take to make sure that you hold on to property that is important to you in case of a divorce. If you are considering divorce and want to protect certain property, you should contact a skilled property division attorney to find out the best way to make sure your assets are protected in a divorce.

Prenuptial Agreement

One of the best ways to make sure that property with sentimental value is protected in the event of a divorce is to include it in a prenuptial agreement. If you are already married, you can draw up a postnuptial agreement that addresses the property for which you are concerned. However, even if you do not have a prenuptial or postnuptial agreement, there are other ways to protect the property.

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DuPage County property division lawyers, business marital propertyThe concept of property division and divorce are familiar to most Americans. Using the Illinois Marriage and Dissolution of Marriage Act, a court will divide property between a divorcing couple in a fair and equitable manner. Dividing a business is much more complicated than dividing a car or the value of a home. Determining the value of a business is further complicated by the fact that the value of a business may fluctuate over time, increasing or decreasing in value at any point in time. If your spouse owns a business, how will an Illinois court value the business upon divorce?

Is a Business Marital Property?

A court will first attempt to determine whether the business is marital property. If your spouse started the business before the marriage and the profits and assets are kept separate from other marital assets, then a court is likely to find the business is not marital property. This means that your spouse’s business will not be divided between the spouses. On the other hand, if your spouse started the business during the marriage, and business deposits/withdraws funds from a joint account, or if business profits are used to pay common expenses, then a court may view the business as marital property and subject the property to division.

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DuPage County divorce attorneys, divorce vocabularyDivorce is the legal process that many couples will decided to initiate under Illinois law. However, as with many legal processes, the legal jargon, or vocabulary, often prevents people from understanding the process. However, a clear understanding of the divorce vocabulary can assist people to cut through the legal jargon and understand what is happening in their divorce case.

  • Alimony or spousal support, is the legal term for money that a supporting spouse pays to his or her former spouse. The amount of the payment will be based on a number of factors, including the length of the marriage and each spouse’s income.

  • Child support is similar to alimony and is a payment from a non-custodial parent to ensure that the child has the necessities for life. However, child support is paid based on the legal idea that parents have certain rights and responsibilities, even when a child’s parents end their marriage.

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DuPage County divorce attorneys, commingled propertyUnder 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. 

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DuPage County divorce attorney, marital and non-marital assetsDivorcing couples must decide how to divide assets and marital property. If a couple can decide how to divide assets without contention, this process can be simple. Sometimes, however, it is not easy for a couple to identify marital assets or decide on how to divide the assets. When this happens it is important to understand how marital property is defined. Understanding basic differences will allow a divorcing couple to properly discuss marital assets with their divorce attorney. 

Defining Marital Property

Illinois is a non-marital property state. This means that property either spouse gained during the marriage is marital property. It does not matter if only one spouse has the title to the property. If the property was purchased during the marriage it will be divided in the divorce. Examples of marital property acquired during a marriage include: 

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DuPage County family law attorney, spouse is hiding assetsThe divorce process is a daunting experience for all parties involved. The Illinois Marriage and Dissolution of Marriage Act provides several guidelines for families to follow, including the distribution of property or assets, to ease the stress of the situation. 

However, the process becomes more difficult when you know your spouse is intentionally hiding assets. Illinois law mandates that marital property be distributed evenly between both parties to the divorce. This includes property or bank accounts acquired after marriage. Commonly, spouses attempt to conceal assets or attempt to deflate their income to ensure they pay lower child support or alimony. There are serious penalties for those who try to hide assets during a divorce.

Scenarios When a Spouse May Hide Assets or Deflate Income

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How Will Gifts be Treated during a Divorce?

During a dissolution of marriage in Illinois, a court will approve a settlement agreement that provides for an equitable distribution of assets. Usually, this means that any marital assets or property owned jointly by the spouses must be divided equally. Non-marital assets, or property that belongs solely to one spouse, will remain the property of that spouse and generally will not affect the way the marital property is divided. Exceptions can be made when an equal division of marital assets would be extremely unfair to one spouse, for example, when the other spouse has a disproportionately larger amount of assets.

Marital vs. Non-Marital

When classifying assets as either marital or non-marital, one of the clearer rules under Illinois law is that gifts to one spouse are presumed to be non-marital property. This presumption provides only a default starting position, however. It can be rebutted or shown to be otherwise with evidence and testimony in court.

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Division of Retirement Benefits during a Divorce

Of all the tricky issues to sort out during a divorce, the equitable division of retirement benefits is among the most complicated. Because you have spent years working to earn your pension, fill your retirement fund, and otherwise prepare for your future, splitting these funds requires great care, and a considerable amount of technical know-how.

One good starting point, however, is knowing that only funds that were added to these accounts during the course of your marriage will be eligible for division between you and your spouse. Any money that you contributed to 401(k)s, pension plans, annuities, IRAs, or other types of retirement funds before your marriage will be yours, and yours alone after your divorce.

The Process of Dividing Your Benefits Fairly

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hidden assets, DuPage County divorce attorneysIf you are currently working through the divorce process, you will likely have to work out a fair division of your shared property with your spouse. This is because, under the Illinois Marriage and Dissolution of Marriage Act, Illinois is an equitable distribution state, rather than a community property state. In an equitable distribution state, the court must determine a fair way to divide property between divorcing spouses, rather than a completely equal one.

Property division can only work when the court has a clear picture of the divorcing couple's complete net worth. When an individual hides some or all of his or her assets to avoid sharing them through a divorce, these assets are known as hidden assets. The process through which a spouse may have his or her former partner's hidden assets brought to light is known as discovery.

Hiding Assets from One's Spouse

Any type of asset can be hidden. Examples of hidden assets include the following:

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valuation of a businessProperty division is often a hotly contested issue of divorce. When a family business is involved, property division becomes even more complex and often much more contested. The parties must establish what the business is actually worth and ultimately, what to do with it.

Remember that under Illinois law, property acquired during the marriage (absent property acquired by gift, inheritance, or other special circumstances) is considered marital property subject to the equitable division of the courts. Any business started by either of the parties during the marriage would therefore qualify as marital property.

Valuation of the Business

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marital propertyDivorce affects everyone differently. Sadly, many of those going through divorce proceedings result to ugly and resentful behavior, primarily aimed towards the soon-to-be ex-spouse. If one spouse has access to the other’s personal property that they know the other cherishes, it is not uncommon for that spouse to threaten or actually sell off or give away those belongings in an attempt to upset the owner. Fortunately, there are ways to deal with this form of attack and ensure that your cherished possessions are protected throughout the divorce process, even while they may be located in the house where your soon-to-be-ex resides.

Protecting Possessions

Think of this real world example: The wife is residing in marital home during divorce. The wife finds her husband’s prized baseball memorabilia collection in the basement and decides to put everything in the collection on eBay to spite her soon-to-be-ex.

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Posted on in Divorce

pet custodyEveryone knows custody can be one of the most contentious issues in a divorce. What may shock people is those custody disputes don’t always only involve children – human children, that is. Increasingly, couples are feuding over pet custody during their divorce proceedings.

According to a recent survey of the American Academy of Matrimonial Lawyers, 27 percent of those attorneys who responded said they noticed an increase in the number of clients fighting for custody of a pet during the last five years. Of those disputes, they also noted an overwhelming 88 percent of those animals caught in the middle of the custody fight were dogs.

Illinois Laws Used When Pets are an Issue

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property division illinois divorceDuring a divorce proceeding, the parties may attempt to come to an agreement about the way in which they will divide their marital property between them. However, if they are unable to come to an agreement, or if their agreement is found to be unfair and unconscionable, it is up to the Illinois Courts to divide the marital estate between the divorcing parties in a way it sees fit. The court employs the law as a guideline in making a property determination within a divorce decree.

Equitable Distribution

Illinois state law follows the concept of equitable distribution in dividing marital property. This allows the court to make a property determination based on fairness and may not involve a perfect 50/50 split of marital property awarded to each party. The court will separate what is classified as marital property from what is considered separate property, and will equitably divide the marital property between divorcing spouses.

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property division, divorce, Illinois divorce lawyer, marital property, nonmarital propertyOf the many concerns that present themselves throughout a divorce case, one is that many parties may have could be about dividing their marital property and other assets. While it may not be a top priority of some couples who plan to divorce, it may be of paramount concern to others, depending on the couple’s circumstances and financial situation. A judge hearing a divorce case has discretion in this area, but the law of the state of Illinois does provide important guidance for consideration on the issue.

Illinois Law 

While many may believe that property is equally divided among the parties in the event of divorce, this is simply not always the case. According to Illinois law, the state follows the doctrine of equitable distribution, which means that marital property is divided in a fair way, but that does not necessarily equate to half to one spouse and half to the other. The specific term is “just proportions,” which refers to a number of factors that a court must consider in making its determination about property division among divorcing spouses. Factors the court may consider include, but are not limited to, the following:

 Each spouse’s contribution to marital property;
  •  Each spouse’s contribution to homemaking;
  •  Any waste of property;
  •  The length of the marriage;
  • Any debt obligations;
  • The relative age and health of each spouse;
  •  Custody terms set for any minor children; and
  • Tax consequences.

It is important to note that the court’s determination is not limited to just one of these factors, such as which spouse made more money during the marriage. A spouse’s non-financial contributions to the marriage will also be equally considered by a judge, especially in the case where the marriage lasted a number of years and one spouse was responsible for maintaining the home and raising children.

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property splitOne of the major causes of contention during a divorce is the division of property.  While a judge can control the distribution, it does not make the fighting stop.  Arguing about property division can also add a lot of time to the litigation process and more legal costs.  Since both spouses are responsible for accumulating the property of a marriage, it can be more advantageous to divide this property together as well. The first step is to create a record of what is commonly owned.  It is important to include all assets or risk the penalty of omitting property.  Then it is important to assign a monetary value to each item either together or with the help of a third party.  For items like cars, houses, and other expensive and complex assets, it will be necessary to consult an expert to value them.  Next go through the list together to find if it is more logical for one spouse to continue owning the property.  If it seems necessary for equality, the assigned values of each asset can allow a tally for each spouse. If assigning a logical owner does not work, there are other ways to accomplish a split as a couple.
  • Sell the property in a garage sale and divide the cash equally to each spouse
  • Use sealed bids on each asset where the highest big wins that item.  But then the losing spouse is awarded an equalizing payment.
  • Use an alternating turn system where each spouse can choose regardless of value.  First pick is determined by a coin flip.  Any discrepancy in total value can be equalized later by taking debt.
  • Hold an auction where each spouse bids on each item, with bids increasing by five percent to insure that bids aren’t constantly a dollar more.
If spouses can draft a property division agreement, then the divorce court can uphold it in the final settlement.  Occasionally the judge will question if an agreement seems unfair.  But the direction of a divorce attorney can ensure that the agreement is in your best interest.  Contact an experienced divorce attorney in DuPage County to review your options for dividing marital property.
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