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DuPage County divorce attorney division of property

When a married couple decides to divorce, one of the most pressing questions is often, “What should we do with the family home?” Some individuals decide to stay in the family home and “buy out” their soon-to-be ex-spouse. Other times, one spouse takes ownership of the home while the other spouse receives property that is roughly equal in value. For some divorcing couples, the choice that makes the most sense is to sell the home and split the profits. Selling your home while going through a separation or divorce can be very complicated both personally and legally. There are several things you should keep in mind when deciding how to handle your family home when it comes to the division of property in your Illinois divorce.

Financial Concerns Regarding the Sale of Your Home

Before proceeds from the sale of your home can be divided, you will need to pay off the mortgage as well as any second mortgage or home equity line of credit. You must also pay the brokers’ fees and any capital gains tax that applies. Tax liability may not be high on your list of concerns, but it can have major financial ramifications during the sale of a house. 

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Wheaton divorce lawyer spousal supportAlthough the overall divorce rate in the United States has been declining, there is one demographic that is getting divorced more now than ever before. People over age 50 are divorcing at a rate which is double what it was 30 years ago. Some of these divorces involve couples who were married for 10, 20, or even 30+ years. Deciding to get a divorce after a long marriage can be one of the hardest choices a person ever makes. Leaving the comfort of a familiar relationship to find a happier life as a single person can be understandably intimidating. In addition, spouses who divorce after a long marriage must consider issues that other couples may not need to worry about.

Adjusting to the Change May Be Emotionally Strenuous

While any divorce is going to involve a degree of emotional and psychological stress, ending a long marriage can be especially difficult. If you and your spouse have been together for many years, adjusting to life without that person can be painful – even if you are the one who initiated the separation. Experts encourage individuals going through divorce after a long marriage to consider finding additional sources of support. This may include speaking with a counselor, joining a support group, or simply reaching out to friends and family that you trust.   

You or Your Spouse May Be Entitled to Spousal Maintenance

In Illinois, alimony or spousal support is referred to as spousal maintenance. While this type of support is not awarded in every divorce, the chances of spousal maintenance being a concern in your divorce increases if the marriage lasted a long time. Maintenance is most often awarded when a spouse sacrificed their educational or career opportunities for the benefit of the marriage or family. For example, if a mother stayed home to raise the couple’s children for the last 15 years, reentering the workforce is going to be extremely difficult. The court may award the mother rehabilitative maintenance until she can gain the skills or education needed to obtain employment. In some divorce cases, especially those involving a marriage of 20 years or more, permanent spousal maintenance may be awarded.

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Wheaton, IL dissipation of assets lawyerIllinois no longer allows divorcing spouses to claim fault-based grounds for divorce. However, this does not mean that a spouse’s behavior cannot influence a divorce settlement. Spouses who waste or destroy property during the breakdown of their marriage or during divorce proceedings may be guilty of dissipating assets. If you are planning to get divorced or have already started the divorce process, and you believe your spouse has grossly misused marital funds or property, you may have a valid dissipation claim.

Defining Dissipation of Assets

Illinois law defines dissipation as the use of marital property for a purpose not related to the marriage when the marriage is undergoing an irreparable breakdown. Examples of dissipation of assets include situations such as:

  • After a wife files for divorce, a husband decides to “get even” with her. He intentionally destroys thousands of dollars of their furniture and other household property so that the wife cannot be assigned these items during property division.

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DuPage County dissipation of assets lawyerBeing cheated on by your spouse can be heartbreaking. Not only do you have to deal with the sadness and anger caused by the betrayal, but you may also have to deal with the financial consequences of your spouse’s infidelity. If you are getting divorced, and your spouse has been unfaithful to you, you should know about a legal concept called “dissipation of assets.” Through a dissipation claim, you may be able to receive compensation for marital assets that were spent on an affair during the end of your marriage.

Defining Dissipation in Illinois

The Illinois Supreme Court has identified dissipation as the use of marital assets for a purpose unrelated to the marriage and that only benefits one spouse. Assets may be dissipated, or wasted, through an affair, gambling addiction, substance abuse problem, intentional destruction of property, or other means. However, in order to be considered dissipation, the wasting of assets must have taken place during or after the “irretrievable breakdown” of the marriage. A marriage is generally considered to be undergoing a breakdown if the spouses are not living together, spending free time together, having marital relations, or have decided to divorce.

Dissipation Claims Related to an Extramarital Affair

There are several ways that a spouse can dissipate marital assets through infidelity. Perhaps your spouse spent a substantial amount of money on expensive jewelry or other gifts for his or her lover. Your spouse may also have dissipated assets if he or she spent marital funds on airfare, hotels, and other travel expenses related to visiting the other person or taking a vacation with him or her. You spouse may have even given away marital property to his or her paramour.

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Wheaton asset division attorneyWhen you and your spouse got married, you might have moved into a house that one of you owned already, or you might have found a new home together. Since your wedding, it is also possible that you and your spouse have upgraded and bought a house big enough to accommodate your growing family. If you find yourself facing the prospect of a divorce, however, how and when you and your spouse bought your current home could affect its status as a marital asset.

Equitable Distribution in Illinois

According to Illinois law, a divorcing couple’s marital property is to be divided equitably, or fairly, between the spouses. The law also defines marital property as assets or debts acquired by either party during the marriage, with limited exceptions for inheritances or gifts to one spouse. Property that was acquired before the marriage is considered to be non-marital and is not subject to being divided during the divorce. This includes the home where you and your spouse were living when the marriage ended.

How and When the Home Was Purchased

If the home in question was purchased and fully paid off by either you or your spouse before you got married, it is not likely to be considered a marital asset by the court. It would more likely be considered a non-marital asset and awarded to the spouse who bought it originally. However, if you bought the home together at any point during your marriage, the home would probably be considered marital property.

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