Commonly Asked Questions Regarding Marital Property Division, Alimony and Other Divorce Issues

 Posted on August 26, 2014 in Alimony / Maintenance

Divorce can be contentious, which is why it is important to know your rights and responsibilities going in. Here are the answers to eight commonly asked questions regarding property division and other divorce-related issues.

1. My spouse has filed a petition for the dissolution of our marriage. What are my financial responsibilities while this action is pending?

A dissolution action stay is in effect against both parties. Neither of you can spend, destroy or otherwise dispose of marital property without the other party's consent, except in the normal course of business or life. For example, you can pay your bills without asking permission but you cannot buy a fancy sports car.

2. What is marital property?

Marital property includes all assets acquired by either spouse during the marriage, except for:

• Property acquired by gift, legacy or descent;

• Property acquired before the marriage;

• Property exchanged for property that was acquired before the marriage;

• Property acquired after a judgment is entered for legal separation;

• Property excluded by a valid agreement between the parties; and

• Property obtained by a judgment awarded to a spouse from the other spouse.

3. Can we decide between ourselves how to divide marital property?

Yes. You may enter into an oral or written agreement explaining how assets will be divided. This agreement may also include maintenance and child custody provisions. The terms of this agreement -- excluding child custody -- are binding, unless the court finds that the agreement is unconscionable. Unconscionability is based on each party's economic circumstances and any other relevant evidence.

4. Will the court consider marital misconduct, such as an extramarital affair, when dividing marital assets?

No.

5. What factors will the court consider?

The court will consider various factors, including:

• What each party contributed to the marriage, whether as a breadwinner, homemaker or something in between;

• The value of the property assigned to each party;

• The duration of the marriage;

• Each party's current economic situation and future income opportunities; and

• Whether the apportionment is in lieu of or in addition to maintenance payments.

6. How will the court determine the value of marital and non-marital property?

The property will be valued as of the date of the trial or as near to it as possible.

7. How does the court decide whether one party is entitled to receive maintenance payments from the other party?

The court will weigh various factors, including:

• Each party's income and property;

• Each party's present and future earning capacity;

• The standard of living established during the marriage;

• The tax consequences of property division; and

• Each party's age and physical and emotional condition.

8. What is the difference between alimony and maintenance?

Nothing. Illinois law refers to former spousal support payments as maintenance. These payments are colloquially known as alimony.

Due to the nature of divorce, you probably have additional questions that we did not answer. Do not hesitate to contact us today for a consultation. Our experienced Kane County divorce attorneys can help you navigate the divorce process.