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Common Property Division Questions

How does property get divided in a divorce?
Determining how to fairly divide marital property and debts can be the most contentious and complex issues in a divorce. When parties cannot agree, our laws require that the judge divide property and debt equitably between the parties. Equitably does not automatically mean equally (although that is how it turns out most often). Property and debt mean all types of property, including real estate, retirement accounts, bank and investment accounts, and personal property. Marsha Cellucci will gather information about the property and debt of the parties from conferences, voluntarily produced financial documents, and subpoenaed documents when necessary and then analyze various options for allocation and thoroughly discuss with the client. The goal is to ensure that the clients’ property and debt are divided equitably under the law via preferably by an agreement and then, within that context, in the manner best suited to the client’s situation.

What property is included in a divorce?
The general rule is all property and debt acquired during a marriage by either party, regardless of whose name is on the title, is marital property subject to allocation in divorce proceedings with certain exceptions including (1) existing property that was acquired before the marriage and kept separate, (2) existing income growth on property acquired before the marriage and kept separate (3) existing property acquired as a gift and kept separate and (4) existing property acquired through inheritance and kept separate. These exceptions are nonmarital property.

How is property valued?
Property and debt have to be characterized as either marital, nonmarital or perhaps a combination of both as, for example, many retirement accounts accumulated both before and after marriage. Then marital property has to be valued and there are necessarily different approaches to valuing different types of property. For example, appraisals or realtor market analyses may be needed to value real estate as opposed to bank accounts or investment accounts which, for the most part, can be valued by looking at statements. Marsha Cellucci can assist in determining values, evaluating tax consequences and obtaining professional or expert assistance if necessary for analysis or for trial. Then, decisions have to be made as to the best way to allocate the property and debt between the parties.

Can I have my spouse pay my attorney fees?
The simple answer is yes, in certain circumstances. In divorce situations, if the marital property is large enough, both parties will likely pay his and her attorney fees from the marital assets. The only issue then might be trying to make sure that the fees each party is paying are roughly equal. When one party has control of the assets such that the other party cannot access it to pay his or her attorney fees, then a petition can be brought seeking a preliminary distribution of assets to pay fees or a petition for interim fees can be filed. The statute regarding interim fee petitions is designed to allow both parties in a divorce to be on equal footing in terms of buying legal representation. Marsha Cellucci will, in conference with the client, evaluate the merits of simply negotiating an agreement for the payment of both sides’ attorney fees or litigating the matter.

The court may order one spouse to contribute to the payment of the other spouse’s attorney fees but only after determining that the requesting spouse is financially unable, relatively speaking, to pay his or her own attorney fees and the other spouse is financially able to do so. Another part of the statute mandates one spouse to pay the other spouse “reasonable” attorney fees when they are incurred to enforce a spouse’s compliance with court orders.

Get The Answers You Are Looking For

The sooner you reach out to a divorce attorney with your divorce questions, the sooner you get the answers you need. Contact The Law Office of Marsha H. Cellucci‘s office in Naperville at 630-912-5058 for more details.