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Posted on in Marital Property

How a Gift Can Become a Marital PropertyItems 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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.


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Posted on in Premarital Agreement

b2ap3_thumbnail_prenuptial-agreement.jpgMany people are under the impression that prenuptial agreements are only for celebrities or those who are entering their second and subsequent marriages. The truth is, a prenuptial agreement is an important document for any engaged couple to sign. A prenuptial agreement states the intended ownership of each of the couple's assets as well as the couple's financial decisions, such as whether or not they open a shared savings account or whether either partner may be held responsible for the other's college debt.

Drafting and signing a prenuptial agreement is easy. You and your partner determine the items you would like to include in your prenuptial agreement, then work with an attorney to draft and sign the document. This document does not have to be submitted to the court or otherwise filed with a government authority to be valid.

Topics to Include in a Prenuptial Agreement

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Posted on in Divorce

Illinios divorce attorney, Illinois family law attorney, property settlement, Aside from child custody, division of marital property is one of the most contentious issues divorcing couples face, especially if they entered the divorce proceeding without a premarital or postmarital agreement outlining these particulars.

The first thing to understand is exactly what assets constitute marital property, as opposed to non-marital property. The law presumes that all property acquired by either spouse during the marriage is marital property.  However, there are several exceptions:

  • Property acquired by gift, legacy or descent;
  • Property acquired in exchange for non-marital property (assets brought into the marriage) or in exchange for property acquired by gift, legacy or descent;
  • Property acquired by a spouse after the couple has been legally separated (remember that a legally separated couple is still married);
  • Property excluded by a valid agreement between the parties, such as in a premarital agreement;
  • Increases in value of property acquired by any of the above methods; and
  • Income from property acquired by any of the above methods.

Equitable Factors

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Posted on in Divorce

marriage rights, Illinois family law, Illinois divorce attorney, St. Charles family law attorney, Marriage bestows certain rights and responsibilities upon spouses. These marriage rights can vary based on where you marry and whether or not your jurisdiction even allows you to marry (for example, while same-sex marriage is now legal in Illinois, it is not allowed in numerous states). Illinois sets forth a couple’s rights in the Rights of Married Persons Act, including:

  1. Right to sue and be sued: A married person may sue or be sued without joining his or her spouse as a party in the lawsuit. Spouses may also sue one another for any tort (a civil wrong) committed during the marriage.
  2. Defense in own right or for the other: If the spouses are sued jointly, either party may defend in his or her own right. Furthermore, if one spouse decides not to defend himself, the other spouse may defend for them both.
  3. Spouse desertion: If either spouse deserts the family, the other spouse may prosecute or defend, in the deserting spouse’s name, any action that the deserter might have prosecuted or defended.
  4. Recovery of damages: If one spouse commits a civil injury, damages are collected from that spouse alone. The innocent spouse is only responsible for the damages if he or she would be held jointly responsible if the marriage did not exist.
  5. Debts incurred before marriage: Neither spouse is liable for any debts or liabilities that the other spouse incurred before marriage. They are also not liable for the other spouse’s separate debts.
  6. Earnings: A married person may receive, use and possess his (or her) own earnings and sue for those earnings in his (or her) own name, free from his (or her) spouse’s interference or interference from his spouse’s creditors.
  7. Property: Not all property held by a married person is considered marital property (belonging to both spouses). For example, if a married person obtains real or personal property by descent or gift, that property belongs to the individual and not to the marriage.
  8. Unlawful possession of non-marital property: If a spouse unlawfully obtains possession of the other spouse’s non-marital property, the property owner may initiate a legal action against that spouse.
  9. Attorney in fact: A spouse may consider the other spouse to be his or her attorney in fact in order to dispose of property for their mutual benefit.
  10.  Removal of children: Generally, neither spouse can remove their children from the home without the other spouse's consent. (“Removal” does not apply to routine comings and goings, such as running errands or going to school.)  If one spouse abandons the family, however, the abandoned spouse gets custody of the minor children and does not need the other spouse's consent to move the family elsewhere.
If you have questions pertaining to marriage rights – whether the question concerns a joint or separate legal battle, the disposition of marital property or something else entirely – contact one of our experienced St. Charles family law attorneys today.
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Posted on in Divorce

 division of assets, division of marital assets, divorcing couples, emotional divorce, estate planning documents, Kane County divorce attorney, liquidity of assets, marital property, non-marital propertyCouples typically do not enter into a marriage wanting to get divorced. Unfortunately, however, divorce happens. If you do not have a prenuptial agreement in place then you may be in for a long, arduous, and emotional process. (Even with a prenuptial agreement, you might be in for a long, arduous, and emotional process.) You can simplify this process by avoiding the mistakes that some divorcing couples make.

First it is important to understand the difference between marital property and non-marital property. Generally, the law presumes that all property acquired by either spouse during the marriage is marital property. There are exceptions, including property acquired by gift, legacy, or descent. Once property is classified as marital, a court will determine how to divide it equitably. Note that “equitable” does not necessarily mean “equal.” A court will consider various factors when dividing the property, including, but not limited to:

  • The contributions of each spouse to the marital property, including a spouse’s contribution as a homemaker;
  • The value of the property assigned to each spouse;
  • The duration of the marriage;
  • Whether either spouse will be receiving maintenance payments;
  • The economic circumstances of each party when the division of property takes effect;
  • Each party’s age, health, occupation, employability, sources of income; and
  • Who is awarded custody of the children.

These factors are not weighted equally and are only a few of the considerations that a court will make.

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