Five
Most Common Misconceptions About Property
& Divorce
If
you are considering a divorce, you may
be surprised by these common misconceptions.
Please take a moment to review them.
Myth
One: "I
will get a greater share of property
if my spouse is guilty of adultery or
other misbehavior that constitutes grounds
for divorce."
Reality: The Illinois Marriage and Dissolution of
Marriage Act (IMDMA) provides for division
of property without regard to marital
fault[1].
Illinois still retains 12 grounds for
divorce[2],
however, the most recent and most often-used
is "irreconcilable differences." The
statute requires a showing that irreconcilable
differences have caused the irretrievable
breakdown of the marriage, that efforts
at reconciliation have filed, or that
future attempts at reconciliation would
be impracticable and not in the best
interest of the family[3].
The parties must have lived separate
and apart continuously for more than
two years, though that period can be
reduced to six months upon written stipulations
of both parties.
Myth
Two: "The
IMDMA requires courts to divide marital
property 50-50."
Reality: The IMDMA does not require an equal division
of marital property; it requires a just
division[4].
Courts often award the economically
disadvantaged spouse a greater share
of the marital estate.
Myth
Three: "The
marital estate should not be valued
when the parties separated or when the
petition for dissolution was filed."
Reality: The value of the marital property is typically
measured on the date of trial, not at
the time of physical separation or when
the petition for dissolution was filed[5].
Myth
Four: "The
stock is my name, so I'll get it in
the divorce."
Reality: As previously stated, the court divides
the marital assets in just proportions
upon dissolution without regard to which
spouse holds title, unless the property
is classified as non-marital.
Myth
Five: "My
spouse inherited property during the
marriage in his/her name alone. I will
be entitled to my share of it when we
divorce."
Reality: Section 503(a) of the IMDMA identifies
and awards non-marital property to the
party owning it as long as it has not
been transferred into co-ownership with
the spouse. Inherited property owned
individually is not marital property,
so you may not be entitled to inherited
property.
Extracted from "The Real Estate Lawyer's
Divorce Primer (and the Divorce Lawyer's
Guide to Real Estate," by Margaret A.
Bennett, Illinois Bar Journal.
1)
In Re Marriage of Rogers, 85 Ill
2d 217, 422 NE2d 635 (1981).
2)
750 ILCS 5/401.
3)
750 ILCS 5/401 (a)(2).
4)
In Re Marriage of Dunseth, 260
Ill App 3d 816, 633 NE2d 82 (4th
D 1994); In Re Marriage of Minear,
287 Ill App 3d 1073, 679 NE2d 856 (4th
1997).
5)
Hollensbe v. Hollensbe, 165 Ill
App 3d 522, 519 NE2d 40 (5th
1988).
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