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Naperville IL divorce lawyerWhen you get divorced, you will likely be concerned about your finances. Shifting from sharing financial resources with your spouse to supporting yourself on a single income can be a difficult adjustment, and the decisions made about how you and your spouse will divide your marital assets can also affect the resources that will be available to you. Unfortunately, these issues can become even more complicated and difficult if your spouse has spent, wasted, or destroyed your marital property or if you are worried that they plan to do so. However, with the help of a skilled attorney, you can protect against the dissipation of marital assets and make sure you will have the financial resources you need.

What Is Asset Dissipation?

If one spouse uses marital funds or property for their sole benefit and for purposes unrelated to their marriage during the period where the marriage is undergoing an irretrievable breakdown, this is considered asset dissipation. For example, a spouse could spend marital funds while pursuing an extramarital affair, such as by buying gifts for someone other than their spouse or going on trips with that person and paying for plane tickets, hotel rooms, and meals. Dissipation could also include spending money on gambling or to further a drug addiction, buying expensive items solely for one’s own benefit, or intentionally destroying property.

If one spouse has dissipated assets, the other spouse can make an asset dissipation claim during the process of dividing marital property, asking the court to address this issue by requiring the spouse to reimburse the marital estate for the dissipated assets or grant the other spouse a larger share of marital property. A dissipation claim must be made at least 60 days before a divorce trial begins or 30 days after the end of the discovery process. Dissipation must have occurred after the date that the couple’s marriage began undergoing an irretrievable breakdown, and a spouse cannot make a dissipation claim more than three years after they knew or should have known about the dissipation or for an incident more than five years before either party filed a petition for divorce.

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DuPage County property division attorneyWhen spouses choose to end their marriage through divorce, they will need to address and resolve multiple different financial issues. During the process of dividing marital assets, real estate property owned by either or both spouses will be one of the key issues to consider, since these are likely to be some of the most valuable assets a couple owns. In addition to determining how to handle ownership of their marital home, couples may also need to consider other properties they own, such as vacation homes or commercial properties. To ensure that these assets are addressed properly, it is important to work with an experienced divorce lawyer, as well as other experts who can perform appraisals of property and provide guidance about financial decisions.

Factors to Consider When Dividing Real Estate and Other Marital Property

If a couple’s marital home or any other piece of real estate property was acquired during their marriage, it will usually be considered a marital asset that will need to be divided along with other property. However, even if real estate was owned by one spouse before getting married, it may be converted from separate property into marital property if both spouses used the property, made improvements, or contributed to mortgage payments and other expenses related to the home. In some cases, a spouse who owns real estate that is considered separate property may be required to repay the other spouse for their contributions to increased property values or equity in the home.

Divorcing spouses may sell their marital home and divide the proceeds from the sale, or one spouse may retain ownership of the home, while the other spouse receives other marital property of a similar value. When selling real estate property, spouses should be sure to understand whether capital gains taxes will apply to the profits they earn. If one spouse will own the home, the mortgage will usually need to be refinanced, and the other spouse will need to be removed from the home’s title and deed. A spouse who plans to maintain sole ownership of their home should be sure they will have the financial resources to make mortgage payments and pay other ongoing expenses, including utilities, maintenance, and property taxes.

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DuPage County retirement asset division lawyerGetting a divorce involves dealing with many different types of legal and financial concerns. While you may be primarily focused on matters such as the custody of your children or the ownership of your property, you will need to understand how your divorce will affect your financial future. If you have begun saving for retirement, understanding what will happen to these savings will be crucial for ensuring that you can maintain financial stability later in life. An experienced divorce attorney can help you determine how to divide retirement accounts and pension benefits with your spouse.

Division of Retirement Plans and Pensions

During your divorce, you and your spouse will need to divide all of your marital property. This includes most of the assets that you acquired, either together or separately, during your marriage, as well as your marital debts. While Illinois law does not require assets to be divided equally between the two of you, it does state that your property should be divided in a fair and equitable manner. 

Either you or your spouse may own one or more retirement accounts, such as 401(k)s or IRAs, and these accounts may contain funds that you have deposited or had withheld from your income, as well as contributions from your employer matching a percentage of the amount you have saved. All funds contributed to these accounts during your marriage will typically be considered marital property, and during divorce, they can be split between you and your spouse, or you may make other arrangements, such as one spouse keeping the majority of a retirement account’s funds and the other spouse maintaining ownership of the family home.

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DuPage County divorce attorneysAn inheritance is property that you receive when a loved one passes away. Though the death of a loved one is often a tragic event, an inheritance can provide you with a bit of financial security. If you are married or plan on getting married, this can pose a unique situation if you were to get a divorce. Because many married couples have shared finances, one of the biggest parts of divorce is determining how to divide assets and debts. In Illinois, this process is done in an equitable manner, which does not necessarily mean that both spouses will come out of the divorce with half of the marital estate. A variety of factors are weighed to determine what is equitable, including each spouse’s income and earning potential, the duration of the marriage, and each spouse’s non-marital property in relation to the marital property. So, what does all of this mean for a spouse who has received an inheritance?

Understanding Marital vs. Non-Marital Property

Before your property can be divided, you must determine which of your property is non-marital and which of it is considered marital property. In general, any assets or debts that you have acquired during the time that you were married is considered to be part of the marital estate. This means that this property is subject to division during the divorce process. There are some exceptions to this rule, however, and inheritances are one of them. As per Illinois law, property that one spouses acquired by gift, legacy or descent is exempt from being considered marital property.

Keeping Your Inheritance Separate

Even though an inheritance is technically non-marital property, there are ways in which it can have both marital and non-marital characteristics. If this happens, then your inheritance could be considered part of the marital estate and subject to division between you and your spouse. For example, if you received a cash inheritance, and you deposited that money into an account that you share with your spouse for household expenses, it could be considered part of the marital estate.

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How to Lock Up Your Assets with a Financial Restraining OrderYou should be on guard against your spouse dissipating your marital assets during your divorce. Some people will transfer assets into hidden accounts or make reckless or selfish expenditures before their spouse gets a chance to divide the assets in the divorce. At one time, Illinois law would automatically freeze a couple’s marital assets at the start of the divorce, but the Illinois Supreme Court ruled that the law was unconstitutional because it was overly broad and lacking due process. Instead, you can protect your marital assets by requesting a temporary financial restraining order.

What Does the Order Do?

A temporary financial restraining order prevents both you and your spouse from spending, transferring, disposing of, or concealing your assets without permission from the court during your divorce. There is an exception for the assets that you use to pay for basic living expenses, such as food, housing, and utilities. Major purchases of non-essential items or amenities would require permission from the court. A temporary order will usually last for 10 days and can be extended after a full court hearing.

How Can You Receive an Order?

The court will issue a financial restraining order if you can prove all of the following:

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