Property Division and Asset Division
Every marriage has at least one topic in common – property. Whether they own a million-dollar mansion or a beat-up RV, a couple will always have to divide up the property - including any real estate or financial accounts and debt. It is more economical to come to an agreement on these issues but that obviously doesn’t always happen. If you make a court decide, it will be up to you and your lawyer to prove to the judge why the property division should occur the way you want it to and not the way your spouse does.
Certain assets remain the exclusive property of one of the marriage partners, even after marriage, and some will be divided. This is done with debts as well. Most debt incurred while married will be shared upon dissolution, though a few personal debts may remain exclusively yours.
Remember that the divorce judgment establishes the obligation between the spouses but does not change the contractual obligations of one or both spouses to the lender .
Marital or Community Property
Marital or community property is defined as assets and debts newly acquired during the marriage, either jointly or by one party, other than by a gift or inheritance to one spouse.
Most states do not have a set mathematical formula for division, and the court will determine a fair distribution based upon a combination of factors as set forth in the state’s statutes.
Non-Marital or Separate Property
Non-marital or separate property are the assets and debts owned prior to the marriage that remain unchanged, or gifts or inheritances during the marriage to one spouse (usually including gifts by one spouse to the other).
Commingled Property
Commingled property are the assets and debts that were non-marital but which were traded in to acquire new property, repaired or enhanced during the marriage with marital funds, or non-marital debts paid with marital funds.
Dissipation
Dissipation is the use of marital assets or creation of marital debt by one spouse for non-marital purposes once the marriage has begun to unravel. The spouse found to have caused dissipation might be required to reimburse the marital estate.
Premarital Agreement:
Also known as a prenuptial agreement, a premarital agreement is the primary method of keeping separate property from becoming joint property after marriage. A premarital agreement specifies the separate property of each party, any property agreed to be joint property, and dictates how property acquired during the union will be treated as either separate or joint.
Real Estate
The acquisition of real estate in joint names or the transfer of existing real estate into joint ownership creates legal rights and liabilities for both parties. Real estate acquired by one spouse after marriage is generally going to be treated as marital property subject to the claims of the other party.
If the desire is not to create rights of the spouse in real estate, a marital attorney should be consulted prior to the acquisition of the property to determine if segregation of the property is legally possible.
Business Property
For income-producing real estate and self-employment business assets, the creation of a business entity, such as a corporation, limited liability company or trust, can be used effectively to segregate the property. While appropriate efforts may segregate the property itself, the income from the business during the marriage – and possibly increases in value of the business property – may still be marital property.If you find yourself in a position where your marriage has failed or failing, we can help. Call (217) 367-1647 to schedule your consultation.
During these unprecedented times during the Covid-19 outbreak, it seems like everything is uncertain and up in the air. On Friday, March 20, 2020, Governor Pritzker enacted Executive Order In Response to COVID-19 (COVID-19 Executive Order No. 10), otherwise known as the “Shelter In Place” order. The order provides that all residents of the State of Illinois must stay home, practice social distancing and that all “non-essential businesses” must cease operations (with certain exceptions). This order left many parents with questions, such as “Do I still have to hand over my children to the other parent?” Before Governor Pritzker clarified his initial shelter in place order, the answer was that we simply didn’t know. However, as the governor has expanded his order, we have more clarity. Pursuant to Section 14(e) of the order, it provides:
Essential Travel. For the purposes of this Executive Order, Essential Travel includes travel for any of the
following purposes. Individuals engaged in any Essential Travel must comply with all Social Distancing
Requirements as defined in this Section:
…(e) Travel required by law enforcement or court order, including to transport children pursuant to a
custody agreement. (Emphasis added)
So in short, the answer is yes! You must continue to comply with your parenting agreement. COVID-19 is not an excuse to deny the other parent his or her court-ordered parenting time. However, this would obviously not apply if the child(ren) has been somewhat exposed to the virus and is in self-isolation or is experiencing symptoms of the virus. If this is the case, the parent in possession of the child in self-isolation should clearly communicate to the other parent that the child is exhibiting symptoms of the virus. If the non-possessing parent has been somewhat exposed to the virus and is in self-isolation or is experiencing symptoms of the virus it would be difficult for the court to sanction the possessing parent for exercising judgment and not allowing the affected parent to have parenting time. Remember that the most important thing at this time is the child’s best interests . During this time, communication with the other parent is key, and you should both utilize your best judgment.
Additionally, all courthouses in the State of Illinois have now closed except for hearing emergency matters. You may also be wondering, “If the other parent doesn’t give me the children during my parenting time, isn’t that an emergency?” Unfortunately, the answer is we are not 100% certain. We are finding that the courts are telling us to file a Petition which will then be reviewed by the court to see if it merits an emergency hearing. If you find yourself in a parenting time dispute that cannot be resolved by direct communication, your first option at this time is to have a copy of your court order handy and call the police on the non-emergency phone number. Explain to them that you have a court order that states it is your time to have your children, and the other parent will not turn them over. Hopefully, the police will review the order, make a phone call, and resolve the matter without further escalation.
Unfortunately, sometimes police deem these cases to be “civil matters,” and are unwilling to get involved. In that case, you should contact an attorney. Sometimes attorneys can get their point across in a way that others can’t. That includes threats to bring the matter to the court’s attention where sanctions can be involved, including the imposition of attorney’s fees. Some courts have provided in their orders that any attorney who brings an emergency motion that is not really an emergency can be subject to sanctions.
In these types of situations, you may be entitled to relief in the future. The most common relief is makeup parenting time. Frequently, there is a finding that the other parent is in contempt of court and reimbursement of attorney’s fees is appropriate. We expect many courts will take a dim view if it finds that the other parent’s non-compliance with the court order and the Governor’s Order was willful and without compelling cause or justification.
We understand that there are many questions during this unprecedented time. If you have questions regarding parenting time during the COVID-19 outbreak, please contact us to speak with one of our experienced attorneys. We have taken measures to protect everyone's safety for in person consultations, and we are also available for video conferencing.
