Read the Transcript of this Podcast Below:
My name is Diana Shepard, and I’m the editorial director of Divorce Magazine and Family Lawyer Magazine. Today’s topic is how property is divided during a divorce in Illinois, and with me is Oakbrook Terrace family law attorney, Dheanna Fikaris, the founder of Fikaris & Associates. Dheanna has been practicing law in Illinois since 2006.
Diana Shepherd: How is marital property and separate property divided in Illinois – and what if one spouse disagrees about which is which?
Dheanna Fikaris: That’s a common problem. Marital property is defined as property that was acquired during the marriage, jointly held from the date of the marriage to the date of the divorce, and non-marital property or separate property is just the opposite, property or home pension fund or something that predated the marriage. Where there’s disagreement is about what’s marital and what’s non-marital. If you have a 25-year marriage, and two years before the marriage the wife had earned a small pension, the portion that pre-dates the marriage is non-marital: it’s not part of the division of assets. Anything acquired from the date of the marriage to the date of the divorce would be marital and would be subject to division, usually 50/50. There’s a lot of debate and arguments and hearings about the issue of what’s separate property and what’s marital property; sometimes it’s cut-and-dried, and sometimes it’s not. It’s not cut-and-dried when someone has a non-marital account [say $100,000 in savings] and they comingle some or all of those funds into the marital estate: for example, they put $50,000 or the $100,000 into the marital home – for renovations, or to build a pool, or whatever – then the $50,000 is no longer non-marital funds. It can be a very complicated issue for discovery, and there is a lot of fighting that goes on. People don’t go into marriage thinking they’re going get divorced, so [they don’t keep track of every non-marital dollar they spend]. Every time they [spend money], they’re not thinking, “If I get divorced, what will this mean for marital division of property?”
Can you get a divorce without having to divide marital assets and debts?
You can do what’s called a bifurcated divorce, so you get the divorce, you have a divorce judgment, sometimes it’s illness, meaning maybe one party is fighting cancer and just can’t deal with the whole divorce process, or maybe there’s a mental illness and issues have to be treated differently. So bifurcated divorce would mean that you would be divorced in Illinois as far as the marriage [is concerned]. The division of property would be held separately and dealt with at a later time. So it’s cut into, it’s bifurcated. It’s not done often; I’ve done one or two over the years, and they were for specific reasons. Most people don’t do it because you’re in this state of limbo where you’re divorced, but all these assets are still out there and there’s been no resolution. It’s a very rare thing to do.
What if one spouse doesn’t believe the property division is fair?
They say that a good settlement is when both parties come out thinking that it’s not quite fair to them – then you know you probably have a pretty good and equitable settlement. It’s the lawyer’s responsibility to make sure that it’s equitable, that the division of property is fair according to the law, and that their client’s rights have been protected and strongly advocated for. But sometimes you have to go to trial and let the judge decide how to divide the assets because the parties just can’t agree. Sometimes it comes down to marital versus non-marital, or it comes down to one spouse never worked outside the home and the other doesn’t believe [that the non-working spouse] deserves any part of what they earned. That’s when you have to go to trial and ask a judge to rule on your disagreement.
What factors must a judge in Illinois consider when dividing marital property?
The factors a judge would consider are the date of the marriage and the date of the divorce; when the property was acquired; how the property was acquired; if one spouse has a trust from a parent, which would be non-marital. The judge would have to know all the relevant facts. If there’s a dispute as to the valuation of an item, the judge might recommend an appraiser for the marital home or a vacation home, or a financial expert for one spouse. Illinois is a fact-pleading state, so the judge needs the facts and then if there’s a dispute, there’ll be a hearing or a trial and the judge will make a decision. That’s not always the best way to go. I think it’s best to try to settle because the judge doesn’t know your life, and you never know what kind of day that judge might be having [when they have to decide your case], so it’s best to settle these things on your own. Sometimes they just can’t be settled, and you have to go to trial. The judge will take all the facts and just apply the law to the facts; sometimes, it’s more of a harsh ruling than if the parties could have agreed to a settlement on their own.
Diana Shepherd: My guest today has been Illinois family law attorney, Dheanna Fikaris, founder of Fikaris & Associates in Oakbrook Terrace. Dheanna strongly advocates for her clients, working with them to resolve their divorce-related issues as smoothly and favorably as possible. If you’re concerned about property division in your Illinois divorce, visit www.FikarisLawOffices.com to learn how Dheanna and her team can help to protect your rights.