Most of the decisions you make during your divorce can and probably will affect you for the rest of your life, but one of the most important decisions you and your spouse must come to is how you will divide your marital estate. For many couples, this can be an emotional and highly contentious process because of the importance placed on their belongings and the need to have financial security after the divorce process has been completed. The way marital property is divided can affect a person’s financial stability or even their ability to retire later in life. With so much at stake, Illinois courts urge couples to try to come to an agreement on their own about property division, though, if they cannot, they will have to take the issue to court.
Factors for Consideration
If a couple is unable to reach an agreement about how their marital estate will be divided, they will have to appear before a judge so that he or she can make a determination for them. If this happens, the judge will only make decisions about marital property, which means most property that was acquired after the couple was legally married but before a judgment of legal separation was entered. The judge will consider a variety of factors, including:
The income you earned before you filed for divorce is considered marital property, which is part of the division of property. Your income after your divorce is used to calculate child support and spousal maintenance but is otherwise yours to keep. The structure of your pay has little consequence on your divorce if you receive a straightforward salary or hourly wages. With other forms of compensation, the timing of your divorce could determine whether your spouse can claim a portion of that income:
Bonuses: In most cases, a work bonus qualifies as marital property if you received it before you filed for divorce. You must make sure that your spouse does not double count the bonus by claiming it as marital property and including it as part of your income when calculating support. An exception may be a bonus with a clawback provision, which states that you must return the bonus if you are no longer with your employer before a set date. You could argue that you should not include the bonus in the division of property because you could lose it. If it is part of the division of property, you should include a section in your agreement stating that your spouse must repay their share of the bonus if you are forced to return it for reasons beyond your control.
Commissions: Some employees receive a commission for work completed in place of or in addition to their salary. If you know that commission pay is coming, you can try to file for divorce in advance so that it is not marital property. However, your spouse may argue that the commission is marital property because you completed the work related to the commission while you were still married. If you cannot agree with your spouse, a divorce court will need to decide whether the commission is marital property.
Stock Options: Illinois divorce law states that stock options that you receive during your marriage are assumed to be marital property, regardless of whether they are vested or if you know their actual value at the time of the divorce. A divorce agreement can set a provision that you will pay your spouse a share of these stocks when you exercise your option on them. Stock options are not marital property if they were a gift or part of an inheritance, which does not apply to stock options you received through work.
Contact a St. Charles Divorce Attorney
Much of your negotiating during divorce will focus on identifying your marital properties, determining their value, and dividing them between you and your spouse. A Kane County divorce lawyer at Goostree Law Group can ensure that your division of property is accurate and meets your needs. To schedule a free consultation, call 630-584-4800.
Most properties that you obtain during your marriage are classified as marital properties in the event of a divorce, such as items you have purchased and the income you have earned. Gifts and inheritances are the exceptions to this rule. Inheritances are assets given to you through an estate planning document, such as a trust or will, or after the probate process. Even if you inherit an asset while you are married, it is usually a nonmarital property as long as you can prove that the person who gave it to you intended for you to be the sole owner of the property. However, your decision on what to do with a property after you inherit it can make it marital property.
Commingling and Transmuting
An inherited property can become marital property if you commingle it with other marital properties or involve your spouse in its ownership or management. For instance:
Inherited money becomes marital property if you put it into a joint account with other marital money; or
Inherited real estate becomes marital property if you refinance the property and your spouse cosigns on the agreement.
In these situations, your inherited properties are either transmuted into marital properties through your actions or become indistinguishable from your martial properties because they are commingled. As marital property, your inheritance could be divided between you and your divorcing spouse or given to you in exchange for other marital properties. As nonmarital property, your inheritance would not count towards the equitable division of property.
Doctors as a profession are statistically less likely to be involved in a divorce. They have demanding workloads that can strain a marriage, but a successful doctor is often financially stable, which helps a marriage. When a doctor does divorce, their practice is part of the division of marital properties. Valuing a professional practice is different than other businesses and requires financial professionals who are familiar with these practices.
Practice as Property
Your medical practice is marital property if you started it after your marriage. If your practice predates your marriage, you must include its increase in value since your marriage as part of your marital property. Unlike with other types of businesses, your spouse does not have the option of owning part of your practice unless they are also a doctor in the same practice. This static ownership means that you will need to compensate your spouse with other marital properties. Your student debt from medical school is marital debt if it was accrued during your marriage. You may be able to offer to assume sole responsibility for the debt as compensation for your medical practice.
Valuing a Practice
A medical practice shares many of the factors used in determining the value of other businesses, such as revenues, physical assets, and growth potential. Two factors of particular concern when valuing a medical practice are:
Items that you received as gifts during your marriage are usually considered to be non-marital property. A gift that your spouse gave to you for your birthday or anniversary is non-marital, even though your spouse used marital money to purchase it. However, a divorce court may classify a gift as marital property and subject to division, depending on the intent behind the gift and how you used it. Here are four examples of how a gift can become marital property:
Gift for Both: The court will distinguish between gifts that are meant for you only and gifts meant for you and your spouse. Wedding presents are a common example of gifts that are marital property because the giver intended you to use it as a married couple. Your spouse may argue that other gifts were given to you as a couple. You need to explain the reason for the gift and whether your spouse used it.
Gift as a Loan: A gift by definition is an asset that someone donates to you with no expectation of compensation. Money that a family member gives you becomes a loan instead of a gift if you agree to pay that money back. Loans that you receive during your marriage are marital debts, which can be divided during a divorce. The best ways to prove that a gift was a loan are showing a promissory note or asking the person who gave the money what his or her intentions were.
Gift as a Reward: An asset is not a gift if you received it in exchange for another asset or your services. The circumstances around receiving the asset can determine whether it was a gift or a reward. A court may interpret a monetary gift as compensation if the giver was thanking you for your help or expected you to perform a service soon after.
Gift Treated as Marital Property: Even a gift that is meant for you alone can become a marital property depending on what you do with it. For instance, money that you inherit is a non-marital property as long as you keep it separate from your marital money. If you put the money in a shared bank account, it gets mixed in with your marital money and may no longer be an individual asset.
Contact a St. Charles Divorce Attorney
You bear the burden of proof when you claim that an item from your marriage was a gift and is not marital property. A Kane County divorce lawyer at Goostree Law Group can find evidence that the item was intended as a gift to you. To schedule a free consultation, call 630-584-4800.
630-584-4800
Most of the decisions you make during your divorce can and probably will affect you for the rest of your life, but one of the most important decisions you and your spouse must come to is how you will divide your marital estate. For many couples, this can be an emotional and highly contentious process because of the importance placed on their belongings and the need to have financial security after the divorce process has been completed. The way marital property is divided can affect a person’s financial stability or even their ability to retire later in life. With so much at stake, Illinois courts urge couples to try to come to an agreement on their own about property division, though, if they cannot, they will have to take the issue to court.
The income you earned before you filed for divorce is considered marital property, which is part of the 
Most properties that you obtain during your marriage are classified as 
Doctors as a profession are statistically less likely to be involved in a divorce. They have demanding workloads that can strain a marriage, but a successful doctor is often financially stable, which helps a marriage. When a doctor does divorce, their practice is part of the 
Items that you received as gifts during your marriage are usually considered to be non-marital property. A gift that your spouse gave to you for your birthday or anniversary is non-marital, even though your spouse used marital money to purchase it. However, a divorce court may classify a gift as marital property and subject to 
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