Divorce and Property Improvements in Illinois
How is property divided in a divorce under Illinois law?
Illinois is an equitable distribution state. This means that courts will divide up the marital property in a manner that is deemed to be fair for both parties. These rules are different from community property rules, which distribute property with a fairly even 50/50 split.
In equitable distribution, an Illinois court will consider several factors to determine whether property is classified as marital property or separate property. Separate property will be distributed to its owner upon divorce, whereas marital property will be distributed according to the analysis factors.
Improvements to a home can present difficult issues in a divorce setting. These are usually permanently attached to the property, such as newly installed windows or the addition of a room. As such, they cannot be physically distributed and must be reimbursed according to the cost or the relative increase in property value.
Illinois divorce law provides for the reimbursement of personal contributions by one spouse to property owned by the other spouse. When one spouse makes a contribution to the separate property of the other spouse, they are entitled to a reimbursement, provided that:
· The contribution is “significant” and results in a substantial appreciation in value of the separate property;
· The contribution is retraceable by clear and convincing evidence (i.e., documents, receipts)
· The marital estate is not being reimbursed in some other way
The court will deduct the reimbursements out of the marital estate. If this is not possible, the court may elect to place a lien on the property of the spouse who received the contribution.
If marital funds were used to improve the property, it could have the effect of converting the separate property into marital property. This is because the court sometimes makes an assumption that the spouse was making a gift to the other. In that case, the contributing spouse might not be entitled to reimbursement.
The assumption of a gift may be overcome through a writing or other evidence proving that the contributing spouse intended to be reimbursed. Alternatively, reimbursement details can always be specified beforehand in a marriage agreement.
Property improvements are an important part of any divorce claim. Home improvements can often be quite extensive and may involve great expenditures in time and resources. It is important to work closely with an Illinois attorney if you are faced with a dispute over property improvements. A seasoned divorce attorney will be able to determine your eligibility for reimbursements.