Factors to Consider When Dividing Property During Divorce

 Posted on April 19, 2018 in Divorce

The process of divorce can be lengthy and complicated, and issues related to the property that a couple owns can often be very difficult to resolve. When determining how to divide property during divorce, couples should be sure to consider the following:

• Marital property - Any property that a couple acquires during their marriage is considered marital property, and Illinois law states that these assets should be fairly and equitably divided between divorcing spouses. However, “fair and equitable” does not necessarily mean “equal;” rather; each spouse should receive a “just proportion” of the marital assets.
• Non-marital property - Property which a spouse owned prior to the marriage or which they received by gift or inheritance is not subject to equitable division during divorce. A prenuptial or postnuptial agreement may also state that certain property is non-marital property. However, marital and non-marital property can become commingled, making it difficult to determine ownership. In some cases, non-marital property may be converted to marital property, or one spouse may be obligated to repay the other spouse for improvements they contributed to non-marital property.
• Real estate - The marital home may be one of the most valuable assets owned by a married couple, and determining how to divide it may be difficult. Spouses may choose to sell the house and split any profits from the sale, or one spouse may purchase the other spouse’s share of the equity in the home.
• Debt - In addition to the assets a couple owns, the debts they owe (such as credit card debts or automobile loans) must also be divided equitably between spouses. However, spouses should be aware that if their name is on an account, a creditor may attempt to collect debts from them if their ex-spouse fails to make payments.
• Family businesses - The assistance of a business appraiser is often required to determine the value of a family-owned business. One spouse may wish to purchase the other spouse’s interests in the business in order to ensure that the business will be able to remain operational after the divorce. If this is not possible, the spouses may wish to continue co-owning the business and working as partners after their divorce, with the option for a spouse to “buy out” the other’s share at a future date.
• Retirement plans - The balance of retirement savings accounts should be divided between spouses, and a person may also be able to receive a portion of their ex-spouse’s pension benefits. When distributing these assets between spouses, a Qualified Domestic Relations Order can be used to avoid penalties or taxes for early withdrawal.
• Social Security - Spouses who were married for at least 10 years may be able to receive half of their ex-spouse’s Social Security benefits when they reach the age of 62, as long as they have been divorced for two or more years. A person can only receive benefits from one source, so if their own Social Security benefits are larger than half of their ex-spouse’s benefits, receiving their own benefits would be a preferable option.

Contact a Barrington Divorce Lawyer

During divorce, it is important to consider every aspect of your property division settlement to ensure that assets and debts are divided correctly, providing you with the resources you need in the future. If you need help resolving issues related to the division of marital property, the attorneys at A. Traub & Associates can help you understand your rights and advocate for your interests throughout the divorce process. Contact our Palatine divorce attorneys at 630-426-0196 to arrange an initial consultation.

Sources:

http://www.divorcemag.com/articles/property-division-on-divorce-are-you-leaving-money-on-the-table

http://www.divorcesource.com/ds/illinois/illinois-property-division-4731.shtml