Marital Property in Illinois

When you get married, you are not contemplating divorce. Unfortunately, a large percentage of marriages end in divorce. During divorce, one of the biggest concerns is often the division of property between the two former spouses. In order to determine which party gets to keep what property, the property must first be divided into marital and non-marital property.

Illinois statute defines what is marital and non-marital property. Marital property is any property that is acquired during the marriage by either spouse. This includes debts and other obligations. Non-marital property is property that one spouse had before the marriage, gifts, inheritance, and any income that is derived from non-marital property. Additionally, property can be specifically excluded from a marital estate if the parties have executed a valid agreement.

In Illinois, only marital property can be divided by the courts. Any non-marital property remains with the spouse who owned the property before the marriage. The Illinois statute also outlines 12 factors that Illinois courts use to divide property:

  • The amount each party contributed in acquiring the marital property
  • Each party’s dissipation of the marital assets
  • The value of the property that is assigned to each party
  • How long the marriage lasted
  • The economic position and circumstances of each party after the property would be divided
  • Obligations or rights of one party because of a prior marriage
  • Prenuptial or postnuptial agreements
  • The needs of each party based on age, health, sources of income, and employability
  • The custody of any children from the marriage
  • Whether the division of the property is instead or in addition to maintenance
  • Each spouse’s ability to earn future income and assets
  • Tax consequences of the division of property

After deciding what is martial property, the court must assign a value to the property before it can divide it. If the parties need help in determining the value of property, professionals, such as appraisers, will be hired to help. If there are assets for which value is difficult to determine, financial professionals can also help. For example, it might be hard to determine the value of a retirement account, and as such, a certified public accountant would be hired to help determine the value.

The court considers the above factors in determining how to divide the assets. The court must come to an equitable decision, but this does not mean that there needs to be an equal division of assets. Of course, there is always the option that the couple can decide amongst themselves how to divide the property. The parties can amicably determine which party keeps which assets and put those agreements into writing.

If you are considering filing for divorce, Hamilton & Antonsen, Ltd. is here to help you. The experienced Joliet divorce attorneys will guide you through this difficult time. We work hard to ensure that you get what is your fair share of the assets and that your divorce is handled with the utmost care. Contact us today.

What happens To My Engagement Ring If The Wedding Is Called Off?

Getting engaged is one of the most exciting events in one’s life. You have found the love of your life and cannot wait to spend the rest of your life with them. However, things can go badly and suddenly the engagement is off. Along with dealing with pain and heartache, there is the issue of who gets to keep the engagement ring?

A couple can come to a mutual decision of who gets to keep the ring. If the couple comes to a mutual decision, there is no need for attorneys or the court to get involved. The ex-couple simply decides among themselves who gets to keep the ring. In a perfect world, a mutual decision would always occur. But the world is not perfect, and conflict arises. Then, the attorneys and the court will help make the determination of who gets to keep the ring.

The Ring as a Gift

One of the first questions is if the ring is a gift. A gift is “a voluntary transfer of property or of a property interest from one individual to another, made gratuitously to the recipient.” In order for something the be a gift, there must be:

  • Intent of the donor to give the item to the donee;
  • There must be a physical delivery of the intended gift; and
  • The donee must accept the gift.

If these elements are present, the court may find that the engagement ring was a gift, and therefore, the recipient of the ring can keep it. Furthermore, special consideration is given in situations in which the ring is given on a holiday. Christmas, birthdays, New Years, Valentines Day, and other holidays that are traditionally marked by gift giving are given special consideration by the courts.

Aside from a general gift, sometimes a gift can be classified as a conditional gift. A conditional gift is one that “is subject to or dependent on a condition.” In these situations, there is a condition that needs to be met – getting married – before the donee can keep the ring. In Illinois, courts generally classify engagement rings as conditional gifts. However, there is consideration of who called off the engagement. If the woman calls off the wedding, usually she will have to return the ring because she did not fulfill the condition attached to the ring – getting married. Alternatively, when the man calls off the engagement, the woman may keep the ring because she did not break any of the conditions to the gift. She was still willing to get married.

Issue arises when there is a mutual decision to end the engagement. If this happens, the court will try to determine who decided to end the engagement first.

If you are going through a broken engagement, divorce, or any other family law issue, Hamilton & Antonsen, Ltd. can help. These Joliet attorneys are well versed in family law issues and can help you determine your rights and options available. Contact us today and we will guide you through any family law issues you may have.

Will County Order Of Protection

Obtaining an Order of Protection in Illinois

Domestic violence is a widespread problem that can have dangerous and even deadly consequences. If you are a victim of domestic violence, there are protections available to you. First and foremost, if you feel threatened by a partner, make sure that you are safe. Get to a safe space so that you can confront this problem and be able to move on to a better situation.

After making sure that you are safe, you may want to considering obtaining an Order of Protection against your abuser. An Order of Protection is a legal order that protects a victim from the abuse of a family or household member who has committed domestic violence against him or her or minor children. Under Illinois Domestic Violence law, abuse means “physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation.”

What does an Order of Protection do?

An Order of Protection is granted to protect a victim from an abuser. There are a wide variety of activities that can be prohibited under the order. Most commonly, a judge will require the abuser to:

  • Stay away from the victim and any other people named in the order
  • Have no contact at all with the victim and other named individuals. This includes calling, texting, email, contacting via social media, and even contacting the victim through a third party
  • Pay child support
  • Return property
  • Move out of a shared home
  • Stop the abusive acts that are the basis of the Order of Protection
  • Stay away from the victim and other named individuals’ work and school
  • Change parental responsibilities, like custody and visitation of the children

Types of Orders of Protection

There are three types of Orders or Protection.

  • Emergency Order of Protection (EOP). An EOP grants immediate protection to a victim of domestic violence. The victim is able to file a petition describing the reason a protective order is needed. Because this is an emergency, the abuser does not need to be notified. The victim will testify in front of the judge and that testimony is enough for the judge to grant the EOP. However, the EOP only lasts for 21 days. The idea behind issuing an EOP is to give the victim immediate protection, but still allow the abuser to be present at a future proceeding for a more permanent solution. After the EOP, a plenary hearing is scheduled.
  • Plenary Order of Protection. The Plenary Order of Protection is issued after a formal hearing with both the victim and abuser giving testimony. The parameters of the order will be determined. The order can last up to two years, with renewal an option after two years with an evidentiary hearing.
  • Interim Order of Protection. An Interim Order of Protection can be issued in the event that there is scheduling issues between an EOP and a plenary order. The interim order is issued for up to 30 days.

If you need to file an Order of Protection, the experienced family law attorneys at Hamilton & Antonsen, Ltd. can help. Your safety is our highest priority and we want to help you achieve the justice you deserve. Contact us today.

Should I File For Bankruptcy Before or After I Get a Divorce?

A married couple living in Joliet or Will County, Illinois who is considering filing bankruptcy and divorce will have many factors to consider determining which they should file first. These factors include how much property needs to be divided, how much debt the couple has and what type of bankruptcy the couple plans on filing. Bankruptcy courts also treat income differently based on whether a person is married, separated or single.

If a married couple living in Will County, Illinois qualifies for a chapter 7 bankruptcy, the most prudent course of action would be to file bankruptcy before filing for divorce. By filing jointly the couple will save money on bankruptcy filing fees, the attorney fees will be shared, and all debts will be addressed under one bankruptcy case saving time and money.

Another factor a married couple in Illinois will want to consider is that Illinois allows married couples “double exemptions” when filing, meaning each spouse may claim the full exemption amount for any property individually owned by that spouse. If the couple owns a lot of property this Illinois “double exemption” policy may be the best course of action.

If the married couple living in Will County does not qualify for a chapter 7 bankruptcy, then a chapter 13 bankruptcy may be a better option. A chapter 13 lasts longer, which will delay the divorce for up to 3-5 years, in contrast a chapter 7 bankruptcy may only delay the divorce for 90 days.

If you are a married person in Joliet or Will County Illinois considering filing for divorce and bankruptcy and want some advice on which to file first, contact Hamilton and Antonsen at 815.729.9220 to set up a free consultation.

Written By: Michael Pollock

What Happens if I Just Ignore Divorce Papers and Don’t Show Up in Court?

In Will County or anywhere in llinois, if you decide to ignore divorce papers and not show up in court, the case will proceed without you. Under Illinois law, if the spouse filing for divorce can prove that there are “grounds” for a divorce, the divorce will proceed. You will not go to jail or be fined for not responding to divorce papers and not showing up in court. What will happen is that a default judgment will be entered and your spouse will get what they asked for. A default judgment is a ruling granted by a court and results in a final judgment in favor of the complying party. Once a decision is made, the final judgment will be sent to you in the mail. If you don’t like the judgment and you have ignored the divorce papers and did not show up in court, it will become extremely difficult and very expensive to vacate the judgment.

If you have been served divorce papers in Illinois and are unsure of the next steps to take or if you are going through a divorce in Illinois and need legal representation or advice, contact Hamilton & Antonsen at 815.729.9220 to set up a free consultation with an experienced Will County attorney.

Can We Use the Same Attorney in a Will County, Illinois Divorce Proceeding?

In Joliet, Will County and across Illinois, spouses are prohibited from using the same attorney in a divorce proceeding. There are typically no exceptions to this rule. It is simply unethical for an attorney to represent two people with competing interest and they are not allowed to do so. Even if the parties agree on everything in the divorce, they still will not be able to use the same attorney. In that occasion, the parties could choose to waive their right to legal representation and represent themselves, which is called going pro se. Going pro se is a decision that should be made after much thought and consideration of all that is at stake in the divorce proceedings. Sometimes the choice of a party to go pro se can put them at a disadvantage. A person must remember that attorneys are duly trained and equipped with the necessary knowledge of the law, procedures and local rules and practices.

In sum, spouses are required to secure separate legal counsel in a divorce proceeding. If you are going through a divorce in Joliet or Will County, Illinois and need legal representation or are contemplating filing for a divorce and need some legal advice or assistance, contact Hamilton & Antonsen at 815.729.9220 to set up a free consultation with an experienced Will County divorce attorney.