Halloween is nearly upon us, a season where the slightest slip-up on a dark and stormy night could lead to scary results. As the legends tell us, victims of vampires, werewolves, and other creatures of the night are often doomed to become monsters themselves. These transformations are terrifying, but pale in comparison to one of the most frightening concepts in all of family law: transmutation (cue the thunder crashes and lightning strikes).
The Illinois Marriage and Dissolution of Marriage Act includes protections for owners of nonmarital property, such as assets acquired prior to the marriage, or property received by one spouse during the marriage by inheritance or gift. Provided the nonmarital character of the property is maintained throughout the marriage, when a divorce occurs, that property will be assigned to the owner spouse as his or her “separate property.”
While married, owners of nonmarital property must exercise considerable care to ensure estates of marital and nonmarital property are not “commingled.” This occurs when nonmarital property is mixed or contaminated with marital property in such a way that makes it impossible for a court to disentangle the two types. This can happen when a property that was initially titled in only one spouse’s name is converted or retitled into some form of common ownership between both spouses or when both non-marital and marital property are commingled into newly acquired property. In these circumstances, a legal presumption exists that the owner of the nonmarital property intended to make a gift of the property to the marital estate.
A prenuptial or postnuptial agreement can be important tools to ensure the “character” of your nonmarital property remains as intended. In both settings, parties can agree to waive certain presumptions under the law. In the event of a divorce without a pre or postnuptial agreement, there are methods and strategies that can be utilized to defeat legal presumptions. Where that result cannot be achieved, a spouse may still pursue a claim for “reimbursement,” permitting the spouse who contributed nonmarital property to recoup some or all of its value.
Navigating these issues without the assistance of an experienced attorney can be a real nightmare. Avoid turning your divorce into a horror show by obtaining appropriate advice before you engage in risky transactions with your nonmarital property.
Happy Halloween!
Craig M. Mandell, Partner
For more on Mr. Mandell, please visit:
https://beermannlaw.com/team/craig-m-mandell.
