What Property Should You Seek in Your Illinois Divorce?

Posted by Erin Birt | Mar 18, 2019 | 0 Comments

In Illinois, divorcing couples need to prepare emotionally and financially for both the divorce process and life after divorce. When preparing emotionally, you may speak with a friend, family member, or trusted counselor.  When preparing financially, your friend or family member might not be able to fully assist you. It then becomes necessary to consult with an Illinois Divorce Attorney to advise you about how best to navigate your divorce and help you determine what property you should seek in your Illinois Divorce. This post will focus on what property to seek in your Illinois Divorce and how other financial circumstances could ultimately influence the amount of assets you receive in your Illinois Divorce.

How to Know What Property to Request in Your Divorce

In Illinois, marital property is accumulated in many ways and it is important to focus on when the asset was acquired, how it was acquired, and what happened to the asset once acquired.  It is important to create an inventory of all of your assets, debts, and liabilities so that you can begin the on-going analysis of what assets to seek in your divorce.  In an earlier post, we discussed what documents to gather and bring to begin the analysis of your marital estate, and the same documents can help you figure out what, or how much, property to request in your divorce.

As you weigh your legal investment against the pursuit of certain assets, you should ask yourself the following:

  1. Was the asset obtained before marriage?
  2. Was the asset obtained as a gift?
  3. Was the asset obtained by inheritance?
  4. Is the asset protected by a valid pre-nuptial agreement?

If you have answered yes to any of the 4 questions, it is possible that you might not be able to seek that asset in your divorce.  There are, however, instances when an asset that appears to be non-marital actually becomes marital.  An example of this is when the recipient deposits inherited funds into a joint account with a spouse.  That act may be viewed as making a gift to the marriage and thus allowing the asset to be divided between the parties during a divorce.

In the video below, I explain additional tips and factors to consider when determining What Property Should You Seek in Your Illinois Divorce.

How Debt Effects What Property to Seek in Your Divorce

What property you should seek during your divorce can also be influenced by the accumulated debt during your marriage. Divorcing couples often do not realize that allocating debt is a very difficult issue in divorce due to the types of expenditures made on the card and the third party contracts involved with the credit card provider. You might be surprised to know that even if you are not listed as an account user or joint holder of a credit card, you could be deemed responsible for a portion of the debt or repayment of a portion of the debt in your divorce.  Also, it is often not sufficient to simply allocate the joint credit card debt to the other spouse in your Marital Settlement Agreement.  A third party credit card provider can sue either party and the only likely remedy an ex-spouse has is to seek enforcement of the parties divorce judgment in divorce court.  It can be an expensive and lengthy process.

So how can you avoid that?  One way is by analyzing your marital estate and seeking either payment of the debt at the time of the divorce or seeking reimbursement of funds, aka additional property, to pay down the debt.  If there is a large amount of marital debt, a spouse can seek to have the marital estate, if large enough, to pay off the debt so that the parties do not have to deal with the credit card provider post divorce. If the marital estate is not large enough, a spouse can seek to have the other spouse pay for a majority of the debt with their income or with their portion of the marital estate.  For instance, if a spouse contests the expenditures on a credit card, called dissipation, a court can rule that the spouse that committed dissipation must reimburse the other party for the wrongful expenditures from their portion of the marital estate received.  Those funds can then pay down the debt of the wronged spouse.

In an Illinois Divorce, it is very important to determine the value of the marital estate and the marital debt when attempting to answer what property should you seek during your Illinois Divorce.

About the Author

Erin Birt

Since 2003, Erin N. Birt, J.D., CADC has focused her practice on parenting time, divorce, mediation, and substance abuse issues. Ms. Birt's unique background in both family law and addictions counseling help her clients successfully navigate the complex issues of coparenting and divorce. Ms. Birt also devotes her time to presenting at continuing education seminars for attorneys, mediators, and counselors.


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