Property Division in a Divorce

Posted on in Illinois Family Law

property-division.jpgWhen you are thinking about filing for divorce in Oakbrook Terrace or another area of DuPage County, you are likely to have many questions about property division. For many members of the Muslim community, issues surrounding property division can be complicated and frustrating given that property division involves more than just financial assets. To be sure, your home, and even valuable family heirlooms, can be subject to division in a divorce proceeding in Illinois.

The Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/), abbreviated as the IMDMA, governs property distribution in our state following a divorce.

Classifying Separate Property and Marital Property

In order for property to be subject to division during a divorce, it must be classified as “marital property.” Any property that is classified as “separate property” is not subject to division. It is important to recognize that “property” refers to both assets and debts, and both will be divided upon divorce if they are characterized as marital property.

It is also important to note that premarital agreements can stipulate how property acquired during the marriage will be classified in the event of divorce, and unless the premarital agreement is unenforceable, the court typically will abide by the terms of that agreement. If there is no prior agreement, how does the court decide what counts as marital property and what counts as separate property?

This process can get complicated. Generally speaking, any property you owned prior to your marriage will be classified as separate property. Likewise, any property you acquired after your separation also will be characterized as separate property. Most assets and debts acquired during the marriage will be classified as marital property and subject to division, although there are many exceptions and numerous complicating circumstances. For instance, if you inherited money during your marriage and placed it into a separate, individual account, it may be classified as separate property. More complex, however, are situations in which separate property has been commingled with marital property, making it difficult to classify it.

Complications Surrounding Property Classifications

What do we mean by commingled property? For example, if you had a separate Individual Retirement Account (IRA) or a personal savings account prior to your marriage, and you and your spouse both began adding money from to either of those accounts during the marriage — money that likely would be classified as marital property—it can be difficult to determine how much of the account is separate property and how much of it is marital property, especially if it has accrued interest during the marriage.

As another example of commingled assets, if you used money you inherited during the marriage or money you earned prior to the marriage (separate property) to enhance the value of your family home (marital property), it can be complicated to determine how much of the home’s value is separate property and how much is marital property.

Distributing Property According to a Theory of Equitable Distribution

Illinois law makes clear that marital property should be divided according to a theory of equitable distribution. This simply means that marital assets and debts will be distributed in a manner that the court deems is equitable, or fair, to both parties. In some cases this might mean an equal distribution, but “equitable” does not necessarily mean “equal.”

Contact a DuPage County Divorce Lawyer

You should always work with an experienced DuPage County divorce attorney to ensure that you have an advocate who can voice your concerns and ensure that your rights and needs are heard. At Farooqi & Husain Law Office, we have years of experience advocating for members of the Muslim community in DuPage County. Contact us to learn more about how we can assist with your divorce.



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