Keeping Assets of Sentimental Value Following a Divorce

 Posted on June 23, 2017 in Division of Property

Asset distribution is a part of nearly every Illinois divorce, and it has unique potential to cause arguments and misunderstandings. Nowhere is this more common than in attempting to distribute assets with significant sentimental value. Both spouses may wish to retain an asset like a piece of art or jewelry that has good memories associated with it, and it can very often devolve into a fight over who will keep the item.

When, How, and Why?

The little details can make a difference. For example, the date, or rough date, of acquisition can often decide who actually has ownership of the item. If you or your spouse acquired the item before your marriage, it is your (or your spouse’s) property, with no obligation to share it. Illinois law holds that nonmarital property encompasses all that you owned before your marriage, unless you actively take the step of making it marital property. For example, if you own a parcel of land before your marriage, and sign half the interest over to your spouse, that land would qualify as marital property, because you took the affirmative step of involving your spouse in its administration.

Sometimes, unfortunately, this can be difficult to ascertain, especially if the item is a gift. Depending on the donor’s intent, which is not always clear, an asset may be marital or nonmarital property. If something is a gift to the couple, it is usually marital property, but a gift to one spouse only may not fit that category. If your spouse is given, for example, his parents’ automobile, it may be considered a gift to only him, while a gift to your spouse of cash or other monetary instruments may still count as marital property because it can be reasonably assumed those funds will be commingled with marital income.

Possible Ways to Keep The Asset

Even if an asset is your spouse’s nonmarital property, it may still be possible to retain ownership or title to it, depending on the specific facts of your situation. If you and your soon-to-be ex-spouse have an amicable working relationship, you may simply be able to negotiate for it by offering other assets as a replacement for the item you want. Obviously, this will not succeed if your relationship is more hostile, but it may be worth trying.

Another, more formal way to retain the asset is to have a prenuptial agreement which disposes of the item, though obviously this only helps if you are able to foresee your wish to retain the item during a future divorce. Still, if you are in a position to do so, it can be smart to ensure that such a provision is included in any prenuptial agreement you sign. Illinois law regarding prenuptial agreements does not permit issues like future child support or parenting time to be addressed, but it does allow for some specific and limited asset distribution, with caveats. A carefully worded provision in a prenuptial agreement can safeguard your ownership of an asset in the event of marital dissolution.

Ask an Asset Distribution Attorney

Even when two people have an amicable working relationship, going through a divorce is often complicated and time-consuming. Having a knowledgeable attorney on your side can make a big difference in terms of smoothing out the process. Our skilled DuPage County asset distribution attorneys can help answer any questions you may have, and help you decide how best to proceed with your case. Contact us today to set up a confidential consultation.

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2087&ChapterID=59

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