April 15, 2016

Understanding Marital Property

Division of Property, Divorce Finances

If you are facing divorce, the division of assets can be one of the more daunting aspects of the process. Not only is there an emotional component to doing so, but it can be difficult to determine what of your possession are considered eligible for equitable distribution, and what is considered personal property. A basic rule of thumb is to consider anything that was bought or obtained during the marriage marital property. This can include the family home, vacation properties, or any business started together.

In some cases, this can include the appreciation of property as well. If, for example, you owned a home before you were married — and your spouse’s name was not added to the deed — it is considered personal property, not eligible for equitable distribution. If, however, significant renovations were made or additions were built to the property, which considerably altered the value of the home, the appreciations can be considered for equitable distribution. To fully understand these grey lines, it is imperative that you work with a qualified legal family law attorney.

Even working with an experienced legal professional, it is often that one partner in the dissolving marriage may be unaware of assets to which she has legal claim. This happens frequently in situations in which one partner was not the primary breadwinner during the marriage. Be sure to take stock of all the assets to which you may be entitled — not just the obvious ones. These can include (but are not limited to):

  • Benefits from previous employers (included stock options and retirement accounts);
  • Capital loss carryover (if a loss occurred during the marriage, it may reduce tax liability for both partners);
  • Memberships to clubs;
  • Travel reward points or programs;
  • Gifts exchanged during the marriage (even if they were given to one person specifically, they can be considered joint property); and
  • Cemetery plots.

One major exception to these rules includes anything that was delineated and specifically called out in a prenuptial agreement. This is one argument for the importance of prenuptial agreements. If you are entering a marriage with far more assets than the other person, or expect the increased valuation of current assets during the marriage, a prenuptial agreement can prevent the other partner from becoming entitled to this type of personal property.

Understanding division of marital property is essential for a smooth transition to your new single life. Do not go through it alone. Contact an experienced DuPage County family law attorney today.