Understanding Commingled Property in Divorce

 Posted on April 20, 2016 in Property Division

During the divorce process, as you probably know, you and your spouse will need to divide your marital property between the two of you. If you are not able to reach an agreement regarding who will get what assets, the decision will be left to the court. In such proceedings, the court will first identify what property is to be divided, establish the value of the property, then allocate it equitably—not necessarily equally—in accordance with considerations contained in Illinois law.

In many cases, identifying the marital estate can be rather challenging, despite seemingly straightforward statutes that govern the disposition of property. The Illinois Marriage and Dissolution of Marriage Act provides that marital property is any asset acquired by either spouse during the course of a marriage, except property that was received by one spouse as a gift, inheritance, or in exchange for other, non-marital property. Pretty simple, right? If you earned or received it during the marriage, the asset is probably part of the marital estate and subject to division.

The Challenge of Commingled Assets

For the sake of discussion, assume you and your spouse each entered the marriage with fairly substantial savings. By law, money that you earned before the marriage is non-marital property in divorce. What if, however, you used a portion of your savings to put a down payment on your marital home, while your spouse used some of theirs to make mortgage payments for several years. In a divorce, how would the house be considered? Would you each get credit for the non-marital assets you contributed?

The answer is not so easy. The law says that if you contribute non-marital assets toward the marital estate, and your contribution “loses its identity” as your property, it is considered commingled and becomes part of the marital estate. If the contribution “retains its identity,” it remains non-marital property. Therefore, in the above example, unless you each kept very careful records of your contributions toward the home, or you had a valid written agreement regarding the money, there is a good possibility that a court would consider your payments as commingled.

Division of Property Help

There are many factors that the court must take into account when deciding on the disposition of marital and commingled property. That is why it is important to seek the assistance of an experienced Geneva divorce lawyer. At our law firm, we are ready to help you protect your assets in divorce and will work hard to ensure an equitable property settlement for you and your spouse. Call 630-232-9700 today to schedule your confidential consultation at The Law Offices of Douglas B. Warlick & Associates.

Source:

http://www.ilga.gov/legislation/ilcs/documents/075000050k503.htm