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Naperville divorce attorneysIf you and your spouse are headed for divorce, you know that you will be expected to divide your marital property between the two of you. While you may not know for sure how that will play out, you may already be thinking about who—if either of you—will keep the marital home, who will get which car, and how to split the household furniture. In the stress and confusion of the divorce process, however, you may be forgetting about a very important—and possibly very valuable—asset of which you may be entitled a portion. Experts say that retirement accounts are the most commonly overlooked assets in a divorce case.

Retirement Savings and Plans

Before marital property can be divided, both you and your spouse should provide one another with a full accounting of all of your assets and debts, even if you think he or she already knows about them. In some cases, this may require a few calls to old employers inquiring about the status of employer-funded retirement programs or plans. You may realize that you have forgotten about a 401(k) plan or similar account that was opened years ago. The same may be true for your spouse, and the money in such accounts, depending on when the accounts were funded, may be considered part of the marital estate.

Marital or Non-Marital?

When considering a retirement account, your spouse may claim that, since his or her name is on the account, the funds are his or hers. The law, however, says otherwise. According to the Illinois Marriage and Dissolution of Marriage Act, assets that were acquired by either spouse during the marriage are considered marital property in divorce. While there are a few exceptions, including property received by gift or inheritance, retirements accounts follow the standard guidelines. This means that any retirement contributions made during the marriage are considered marital property, regardless of the name on the account.

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DuPage County divorce attorneysWhen a married couple divorces, they will need to decide how all of their marital assets are divided. If spouses cannot reach an agreement about property distribution, the court will decide a property division arrangement on the couple’s behalf. One question many divorcing individuals have is, “How are pets managed during divorce?” Although you probably think of your dog, cat, horse, bird, fish, or reptile as more of a family member than a piece of property, the law generally treats pets as property. However, Illinois made changes to the way “pet custody” is handled during divorce in 2018. Read on to learn about this relatively new law and how it may affect your divorce case.  

Pet Ownership Laws in Illinois

Pets are still effectively considered property for the purposes of divorce in Illinois. If a pet is considered a non-marital asset, it will be assigned to the original owner. If the pet is considered a marital asset, a determination will need to be made regarding who will own the pet after the divorce. Although pets are not treated exactly the same as children in a divorce, the new law does make a distinction between pets and other property like bank accounts and furniture. Section 503 of the Illinois Marriage and Dissolution of Marriage Act states that if the pet is considered to be part of the marital estate, the court “shall allocate the sole or joint ownership of and responsibility for a companion animal of the parties…the court shall take into consideration the well-being of the companion animal.”

Sometimes, a spouse will argue for ownership of a pet simply to get revenge on the other spouse or draw out the divorce proceedings out of spite. Illinois judges consider which spouse can best provide for the pet’s welfare and who has been the primary caretaker for the pet in the past. This helps reduce the incidences of spouse acquiring ownership of a pet that they do not actually plan to love and care for. Spouses may also choose to share responsibility for pets.

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DuPage County divorce attorneysSpouses who are getting divorced can, and often do, fight about virtually anything, but issues involving money are often among the most difficult to resolve. This can be especially true if one or both spouses have substantial wealth or high net-worth. However, planning is important for divorcing couples, no matter how much money they have. If you and your spouse are considering a divorce, there are some things you can do to protect yourself and your assets.

Gather Relevant Information

When you were getting married, you probably did not wait until a week before your wedding to start looking for a caterer or venue for the reception. Unfortunately, many people approach divorce in exactly this way. They do not do anything about the situation until their spouse actually files the petition for divorce.

It is a good idea to start preparing as soon as divorce becomes a real possibility. There is absolutely no harm in getting financial information together. Most experts recommend going back about five years and gathering as much as you can, including account statements, transaction receipts, tax returns, credit card bills, investment paperwork, and any other items that could provide details about your finances. If you are unsure about a particular document, keep it just in case. Make copies of everything and have them available for your lawyer and the court once the proceedings get started.

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DuPage County family law attorneysIt is an unfortunate reality that divorce can sometimes bring out the worst in people. When a marriage is ending, spouses can sometimes act in ways which deplete the martial estate. They may purposely waste marital funds so that the other spouse does not have access to them or they may have an expensive drug, alcohol, gambling, or shopping addiction which drains the estate. If you are getting divorced and your spouse has squandered shared assets, you may be able to recover these assets through a dissipation claim.

Illinois Law Regarding Dissipation of Assets

The term “dissipation” generally means to waste or spend resources frivolously or recklessly. With regard to divorce law, dissipation occurs when a spouse uses marital funds for a purpose not benefiting the marriage after the marriage has suffered an “irretrievable breakdown.” There is some ambiguity about what exactly constitutes this breakdown, but it is generally defined as the moment that a married couple ceases attempts at reconciliation. In other words, an irretrievable breakdown occurs when divorce is imminent.

Examples of Dissipation

The Illinois Supreme Court has defined dissipation as the sale or use of marital property “for the sole benefit of one of the spouses for a purpose unrelated to the marriage.” This means that using marital funds for household bills or a mortgage payment is not dissipation. If a husband used thousands of dollars of martial funds on a vacation for him and his secret girlfriend during the end of his marriage, it is very likely that this would be considered dissipative. Similarly, if a wife has a substance abuse problem and spends a significant amount of money on drugs after the breakdown of her marriage, her spouse could claim dissipation. Spouses may also be able to file a dissipation claim when marital property “goes missing” and the other spouse cannot account for why the money or property was used.

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DuPage County divorce lawyerOne of the most complicated parts of the divorce process is often the division of martial property. We generally think of marital property as physical items like fine art, collectables, or vehicles. However, these are not the only assets which must be divided. Retirement assets like pensions and 401(k) accounts must also be addressed during an Illinois divorce. Due to their nature, these assets cannot simply be sold and the proceeds split between divorcing spouses. According to Illinois law, there are certain steps that must be taken to ensure that retirement accounts are divided fairly during a divorce.

Valuing a Pension for the Purposes of Divorce

There are two major factors which influence how a pension is handled during a divorce. First, a determination must be made about whether the pension is marital property or separate property. In Illinois, only marital property, or shared property, is divided between divorcing spouses. Marital property generally includes property which is acquired by either spouse during the course of the marriage. However, it can also include comingled assets which started out as separate property but then became mixed with marital property. Often, the value of the pension that accrued throughout the marriage is deemed marital property and the portion of the pension present before the marriage is considered separate property.

The second factor which influences how retirement accounts are divided during divorce is what type of retirement plan it is. Some pensions are “defined contribution” plans which involve a specific amount of money being taken out of a person’s paycheck each pay period which will go into the retirement account. Defined benefit plans, on the other hand, involve employer-provided payments during retirement. Defined contribution plans are often much easier to value than defined benefit plans.

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