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Chicago Divorce Lawyer

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Property Rights in Divorce

In the State of Illinois the courts view property as either marital or non-marital property. While each situation requires targeted analysis and review, there are some generalities that help to determine which property is a part of the marital assets and which property may fall under non-marital property.

In general non-marital property includes:

  • All property which you owned prior to the marriage, which has been kept separate and apart in your name alone, and which has not been commingled with any assets acquired during the marriage.
  • All property that you received as a gift, or that was inherited.

The presumption is that all property acquired after the marriage is marital. That includes all assets, despite in whose name it is held, i.e., whether held jointly or in one spouses’ name alone. The determining factor is the date of acquisition.

Property that enters the marriage as non-marital property may become a part of the marital property when circumstances change. For example, if you owned a home outright when you entered the marriage but then refinanced the home with your spouse after the marriage, placing your spouse’s name on the title, the home would convert from non-marital to marital property. Another scenario would be if you sold that home. The proceeds from selling a home that you owned outright prior to marriage would remain non-marital property. However, if you deposited the proceeds into a joint bank account which contained your salary and other marital money, the cash from the sale of the house would beecome marital property.

Ultimately, it falls upon the court to determine which property is “non-marital” or “marital” property. Once the determinations are made, each party will walk away with their non-marital property while the marital assets will be divided equitably, but not necessarily equally.

When multiple assets are involved, it is always best to work with an experienced divorce attorney to insure that you have a clear understanding of your assets and that the court has the information necessary to make equitable distributions.

A frequently asked question is whether, while a divorce is pending, one spouse can force the other spouse to move out of the marital residence. There are two separate statutes which grant the court the authority to order the removal of a spouse during the divorce, the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101) and the Illinois Domestic Violence Act (750 ILCS 60/101).

Section 701 of the Illinois Marriage and Dissolution of Marriage Act allows a “temporary eviction” of a spouse during the divorce proceeding if “the physical or mental well being of either spouse or their children is jeopardized by the occupancy of both spouses.” The degree of proof is greater than that of the Domestic Violence Act.

Exclusive possession of the marital residence may be obtained more easily under the Domestic Violence Act. Under the Domestic Violence Act, a spouse must prove abuse or harassment, and that it is less of a hardship for the other spouse to relocate to another residence. An action under the Domestic Violence Act may be brought as either an independent action or as part of a pending divorce case.

During the pendency of most divorce cases, the atmosphere in the marital residence is tense and stressful for all parties. This is an insufficient basis under both statutes to require the removal of a spouse. Also, under both statutes, a spouse’s being required to move does not affect title to the real estate or who, at the end of the case, is awarded the marital residence.

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