WHATS SO GREAT ABOUT MARITAL PROPERTY
AND WHY DO I CARE
Illinois is a “Marital Property State” and that is a mouthful. What does it mean and why do I care or should I care? Here’s the short version: everything you or your spouse own, have title to, have held for him or her by another in trust or any other way, is Marital Property except for Non Marital Property. Sounds confusing . . . it really is not. We need Marital Property because that is the only thing that a judge (the one with the black robe) can award or divide between the parties. The Judge cannot award property of one spouse that is Non Marital to the other. This is important so now, look to the exclusions for Non Marital, and find that:
- If you owned it before the marriage and did not later put your spouse’s name on it, it’s Non Marital.
- If you acquired it during the marriage by gift or inheritance and did not later put your spouse’s name on it, its Non Marital.
- If you and your spouse decided that something should be Non Marital and did not later put your spouse’s name on it, it’s Non Marital.
- Finally if it starts out as Non Marital and you sell or exchange it to another asset with your name on it, it is Non Marital. Did not later put your spouse’s name on it, its Non Marital.
If you get the idea that “not putting your spouse’s name on your Non Marital property is important then you have got the concept. Is it fatal to add his or her name to the property? Well that’s what pays the attorneys fees to unscramble and the answer is “perhaps”. Placing a spouse’s name on your Non Marital property gives rise to a rebuttable presumption that you intended to convert the property to Marital. Do you get the idea . . . well let me illustrate.
You owned a condo before the marriage and sold it during the marriage, perhaps when you got married you lived there until you started your family (or got pets that required more space . . . whatever); you sell the condo and buy the house in your own name. Years later, when you discover that your great aunt dies and because she kept her house in her name, your uncle had a hell of a time getting it and had to go through probate (legal fees, court costs, creditors, delays etc). You consult your real estate lawyer (who does not understand marital property because he is not a divorce attorney and has not only never been married, but never was divorced and has no clue) and he suggest joint tenancy “the poor man’s version of a will and estate plan. “ This way the property passes on your death to your loving spouse. Sounds good but what happens 10 years later when your loving spouse . . . well you can see the disaster coming. The presumption is “marital” but you can overcome the presumption, you need an experienced and understanding attorney.
Another equally complex brain twister. Two high school friends HUCK FINN and TOM SAWYER have started a repair service . . . . they work part time and at night with HUCK & TOM HANDYMAN’S and during the day go to college and get business degrees or engineering and in the meantime their H&T HANDYMAN’S business becomes full time. In college each marries his true love. Sometime after marriage and before the divorce war, they incorporate their business into H&T, INC and two years later, buy a lumber yard, then those businesses blossom into a construction company and they change the name to the GENERAL WOOD HOME CONSTRUCTION COMPANY a multimillion dollar business partnership or corporation. Well, fate being what it is, love dies and divorce war’s begin and, “yep”, the wife’s position is that that business was acquired during the marriage and it’s marital (and of course her next question is “how much is mine, your honor . . . it’s marital, isn’t it” Get experienced divorce attorneys at this point because HUCK & TOM never put their wive’s names on the business and it really is based on HUCK & TOM HANDYMAN . . . . Non Marital. Well, it’s never that simple, because although the court can’t transfer the property to the wife, they sure can transfer everything else or if there is nothing much, this is where the alimony (maintenance) can really get serious.
What’s the lesson? Experienced attorneys, who practice in the divorce field, will understand and can help (whichever side of the property you are on); this is a far cry from a simple property issue.