Conflicts over the division of assets in a divorce are sometimes based more on emotional or sentimental value than on financial value, particularly when family heirlooms or gifts are involved. There can also be a dispute over whether an item qualifies as marital property that must be divided or not.
Under Illinois divorce law, most income earned and assets acquired during the marriage are considered marital property. However, per 750 ILCS 5/503(a), “property acquired by gift, legacy or descent” is non-marital property. Anything acquired in exchange for such property is also a non-marital asset.
To help clarify these rules, let us consider the following items and how they would be treated in a divorce:
An antique desk that your spouse inherited from a grandfather while you were married. Inherited assets that have not been commingled with marital assets are non-marital property, so your spouse would get to keep the desk. Suppose, though, that your spouse sold the desk for $3,000 and used it to make a down payment on a new family car, and you made payments on the car loan out of your joint checking account. Because the inheritance was commingled with marital assets, its value is now marital property. Your spouse cannot claim that $3,000 as non-marital property.
A gold-and-diamond watch that your spouse bought for you last Valentine’s Day using their annual bonus from work. All income earned during the marriage is a marital asset. However, most gifts are considered non-marital assets, including gifts from one spouse to another. The watch will likely be considered your non-marital property.
A set of silverware your parents gave you as a wedding gift. Wedding gifts are assumed to be given to both spouses. If this had been a gift for your anniversary, it would also be considered a gift to both of you. In addition, something like silverware is obviously intended to be used by both of you. Thus, the silverware must be considered marital property.
A gold ring given to you by your father-in-law which had been handed down through several generations of his family and which he had resized for you. The ring was a personal gift clearly intended for your personal use, not for use by both you and your spouse. Therefore, the ring is your non-marital property. However, your spouse’s relatives may really want that ring back in their family. When an item has more sentimental value to your spouse than to you, the generous thing to do is to let your spouse have the item, but you also have to look out for your own financial interests. If the item has a high dollar value, you could ask your spouse to add that amount to your share of the overall division of property.
The division of property in a divorce can involve emotional as well as financial decisions. An experienced DuPage County divorce lawyer can advise you about every aspect of your divorce, including how to separate marital from non-marital assets. Call Mevorah Law Offices LLC at 630-932-9100 for a free initial consultation.
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