Divorce: Property Division
When parties go through a divorce, the first major thing the Court will decide are issues relating to the parenting of the child or children. If the parties do not have any children, or once the parenting issues are decided, the Court will then turn to the financial side of the divorce. While child support and spousal support do need to be determined, a more complex issue arises when the Court is tasked with dividing the marital estate.
What is the Marital Estate?
The marital estate is the total value of all assets determined to be marital minus all debts determined to be marital. This means the Court must first determine which assets are “marital.” A general rule of thumb is that all assets acquired during the marriage, regardless of title, are marital assets that make up the marital estate. There are various exceptions, which an experienced divorce lawyer or family attorney can explain in further detail.
Marital debts are those debts incurred during the marriage for a normal marital purpose, including most commonly mortgage debts and auto loan debts.
Determining the value of the marital estate can become complicated as the liquidity of the marital assets become more complex. Calculating the value of a bank account is straight forward; calculating the value of a business is not. In many cases it makes sense to hire an expert to value a business in a divorce case, as reaching an accurate valuation is necessary before the Court can divide property. Tax consequences also must be considered when dividing retirement accounts.
Once the value of the marital estate is determined, the Court will then divide it equitably. Many times the Court determines an equal division of the marital estate to be equitable, but the law only requires the division to be equitable, not equal.
There are a number of factors the court can consider in determining whether the division of marital property is equitable. Contact a divorce lawyer or family attorney at our Lombard or Plainfield offices for a free consultation. Our attorneys are able to meet in person or discuss your options via phone if it is more convenient for you.
For more information about marital property in divorce cases, see section 5/503 of the Illinois Marriage and Dissolution of Marriage Act.
Can I stop a divorce once it is filed?
It is fairly simple to stop a divorce at any point prior to the entry of a final Judgment for Dissolution of Marriage. If the party who filed the Petition for Dissolution of Marriage no longer wishes to proceed with the divorce, they can request a voluntary dismissal of their Petition through a Motion to the Court. If the non-filing party has already filed a response to the divorce petition, and/or filed a counter-petition for divorce, additional procedural requirements may need to be met, and both parties’ agreement to dismiss the case may be needed prior to the dismissal. Once a divorce is stopped, all previous Orders entered by the Court become unenforceable.
A more common scenario that occurs is when the parties wish to have a “reconciliation” period after a Petition for Dissolution of Marriage has been filed. In this scenario, the parties have already begun the divorce process, but one or both parties are not one hundred percent sure they want to continue. The Court will generally grant at least one request for reconciliation, which is a period of approximately 90 days during which the divorce process is “paused” as the parties attempt to work out their differences. If the reconciliation period is successful, the Petition for Dissolution of Marriage can be withdrawn and the parties can continue as if no divorce had been filed. If the reconciliation attempt fails, the divorce picks back up where it left off at the start of the reconciliation period.
If you have questions regarding a divorce you are going through or planning to go through, contact our experienced lawyers today. Our attorneys are available to meet either in person at our Lombard or Plainfield offices or on the phone at any time.
Mediation in Divorce and Family Cases
In most Illinois counties, if the parents cannot agree on the issues of parental responsibilities or decision making, custody, or parenting time (or other non-financial issues), the Court will Order the parties to attend mediation prior to proceeding to a contested hearing on their issues in dispute. This serves two main purposes: encourage discussion and possible settlement, and also to deter court action over relatively minor disputes. If the parents must attend (and pay) a licensed mediator prior to bringing the matter before the Judge, usually only serious and major disputes will remain unresolved. Mediation may be waived by the Court for good cause and is not required if impediments exist such as: domestic violence, mental illness, cognitive impairment, drug use, alcohol use, prescription medication use, physical impairment, fraud, duress or undue influence.
If you are unsure whether your dispute is subject to mandatory mediation, contact our experienced divorce and family law attorneys. We are available to meet either in person at our Lombard or Plainfield offices or on the phone at any time.