In America you have the right to own a gun…under certain conditions based on local, state and federal law. Once you get divorce, or start to get divorced, the conditions of your gun ownership have an additional layer…the clauses of your divorce decree. So, what happens to your guns and other firearms in an Illinois divorce.
Guns As Marital Property In An Illinois Divorce
In an Illinois divorce, when it comes to division of assets, the first step is to determine if any particular piece of property is marital or non-marital. Guns and other firearms go through this legal analysis just like any other property owned by one of two divorcing parties.
Marital property CAN be divided and/or distributed by the Illinois divorce courts.
Non-marital property CANNOT be divided and/or distributed by the Illinois divorce courts.
To determine whether the property is marital or non-marital we look to see when it was acquired. If the property was acquired before marriage, the property is non-marital.
So, if you bought a gun BEFORE you were married and still have that gun, you will get to keep that gun. But, you have to prove that you bought it before the marriage. Hopefully, you have some kind of receipt or registration. Failing a paper trail with a date, a photo and/or your own testimony are also evidence of the date of acquisition(although perhaps not sufficient evidence)
If you purchased a gun AFTER the date of the marriage, the gun is probably marital property.
There are exceptions to property purchased after marriage being marital property:
- If you bought the gun with non-marital money,
- If the gun was a gift to you,
- if the gun was inherited by you,
- and other technical exceptions.
Dividing Guns and Firearms In An Illinois Divorce
To possess a gun or firearm in Illinois, you must have a FOID card.
“No person may acquire or possess any firearm, stun gun, or taser within this State without having in his or her possession a Firearm Owner’s Identification Card previously issued in his or her name by the Department of State Police under the provisions of this Act.” 430 ILCS 65/2
So, the court can only lawfully award a gun to a party with a FOID card.
If both parties to the Illinois divorce have FOID cards, then the guns will be divided between them
If only one part to the Illinois divorce has.a FOID card, that party will almost assuredly be awarded the guns.
Property is divided equitably in an Illinois divorce. This means that a judge gives the property to the divorcing parties in a manner that is “fair” not “50/50.” In my experience, fair always looks pretty darn close to 50/50.
The courts cannot determine the value of a piece of property unless you agree on the property’s, bring in an expert to attest to the value, or sell the property to determine its value.
In the case of guns and firearms, the values are pretty obvious via a simple catalogue or internet search. Bringing in an expert to testify to the value of guns feels tedious and expensive for such a commodity-like item. Selling the guns immediately would probably mean getting pawn shop prices or needing a Federal Firearms License as you could be considered a gun dealer.
If one party keeps all of the guns in a divorce, they should expect to reimburse the other party for half of the marital value of those guns. Again, you’ll have to determine this value by agreement or expert opinion.
Child Custody, Guns and Firearms in Illinois
The law on storing guns when kids are around is strict in Illinois.
“[I]t is unlawful for any person to store or leave, within premises under his or her control, a firearm if the person knows or has reason to believe that a minor under the age of 14 years who does not have a Firearm Owners Identification Card is likely to gain access to the firearm without the lawful permission of the minor’s parent, guardian, or person having charge of the minor, and the minor causes death or great bodily harm with the firearm,” 720 ILCS 65/2(a)
So, you probably can’t have a gun if there’s a child under 14 and the child’s parent doesn’t agree that you should have the gun.
Of course there are exceptions:
“unless the firearm is:
secured by a device or mechanism, other than the firearm safety, designed to render a firearm temporarily inoperable; or
(2) placed in a securely locked box or container; or
(3) placed in some other location that a reasonable person would believe to be secure from a minor under the age of 14 years.” 720 ILCS 65/2(a)
Still, you are going to have to prove to the court, if not the other parent, that the firearm’s storage meets all of these requirements. Your results will vary based on the judge’s experience and feelings towards firearms.
If you insist on having guns in the home where your children stay and the other parent objects to the children being at that home because of the guns, the court will decide what will happen based on “the best interests of the child.”
Orders of Protection And Guns in Illinois
In divorce and family law cases, it is common for a fight or disagreement to escalate into an emergency petition for order of protection…especially when the specter of gun violence exists.
After the initial hearing on the emergency petition for order of protection, an interim order of protection is almost always granted. That is, the judge decides that there is a prima facie basis for issuing the order of protection for the next 21 days until a full hearing with all parties present. Usually, the ownership of a gun is prima facie evidence enough for most Illinois judges.
Upon the issuance of an emergency order of protection, a series of events must then unfold under Illinois law.
“A) A person who is subject to an existing domestic violence order of protection issued under this Code may not lawfully possess weapons under Section 8.2 of the Firearm Owners Identification Card Act.
B) Any firearms in the possession of the respondent…shall be ordered by the court to be turned over to a person with a valid Firearm Owner’s Identification Card for safekeeping. The court shall issue an order that the respondent’s Firearm Owner’s Identification Card be turned over to the local law enforcement agency, which in turn shall immediately mail the card to the Department of State Police Firearm Owner’s Identification Card Office for safekeeping. The period of safekeeping shall be for the duration of the domestic violence order of protection. The firearm or firearms and Firearm Owner’s Identification Card, if unexpired, shall at the respondent’s request be returned to the respondent at expiration of the domestic violence order of protection.” 725 Ill. Comp. Stat. 5/112A-14(b)(14.5)
So, your guns will have to be surrendered to the local police station for the pendency of your order of protection (orders of protection last a maximum of two years).
If you own guns and are getting a divorce in Illinois, move yourself and your guns out of the marital home. Sooner or later the police will be called and you already know the first thing the police will ask: “Are there any firearms in the house?”
In lieu of an order of protection, you can get rid of your spouse’s guns for the pendency of the divorce with a motion for temporary relief asking that your spouse be restrained from having the guns until the divorce is over. Almost any judge will grant this temporary motion…especially if you have children.
The Real Solution To Guns And Divorce In Illinois
If you think guns are going to be a contentious issue in your divorce, the solution is simple: No guns, no problem. You can just sell the guns and buy new guns later. This is the most practical solution if you have an anti gun spouse.
Guns cannot be included in a marital settlement agreement if they are no longer in anyone’s possession.
It’s unlikely that your spouse will request a bunch of clauses regarding guns in your Agreed Allocation of Parenting Responsibilities and Parenting Time when there are no guns at the time of the divorce negotiations.
There’s no obligation to inform your children’s other parent if you later get a gun…but if the children even remotely have access to the guns it’s a class C misdemeanor with a $1000 minimum fine. Also, such a misdemeanor charge would certainly be the basis for your spouse to file a motion to modify parenting time and take away your custody, possibly.
If your guns have a sentimental attachment, you could probably even tell a gun dealer that you’ll buy those same guns back from him or her at a later date for a small premium. Do not enter into a contract to do so, though. Even a handshake! Otherwise, that becomes a property right and you’d have to disclose that property right to your spouse during the divorce…and the whole can of worms would be re-opened.
If you have guns or firearms in Illinois and want to know your options during your pending Illinois divorce, contact my family law office in Chicago, Illinois to speak with an experienced Chicago divorce lawyer.
