Personal items in an Illinois divorce

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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Household and Personal Items In An Illinois Divorce

Personal items in an Illinois divorce

When faced with divorce there are lots of big financial questions like “who gets the house” and “how much alimony will I get?” In addition to the big issues, there is the entire lifetime of items that a couple will have accumulated over the years. What happens to all these household and personal items during and after an Illinois divorce?

Dividing Household And Personal Items By Agreement In An Illinois Divorce

I, personally, have divorced over a thousand couples. Household and personal items have rarely been an issue of much dispute. In practice, household and personal items aren’t subject to litigation in an Illinois divorce. The Financial Affidavit that every divorce litigant must fill out doesn’t even have a space to list household items. The closest thing the Financial Affidavit demands is that litigants list their “Valuable Collectibles (coins, stamps, art, antiques, etc.)”

Most divorce clients have already divided these items between them by the time they have hired a divorce lawyer. The party that moves out simply takes what they need or want from the martial home without much argument. The final ownership of anything that was left behind and is still desired is later negotiated between the two parties.

The parties to a divorce will subsequently include a clause in their Marital Settlement Agreement memorializing this division of household and personal effects. This clause will read something like: “Furnishings: The parties have previously divided all furniture, furnishing, personal jewelry, clothing, books, and memorabilia equally and to their mutual satisfaction. Said property, as divided, shall be deemed the sole property of the party who has possession, free and clear of any claim of the other.”

A divorcing couple may not fight over every stick of furniture but it is not unusual for one or two items within the house to become a point of dispute in an Illinois divorce. In such cases, there are a series of rules to follow.

Each Party Keeps Their Non-Marital Property In An Illinois Divorce

The easiest way to initially divide all of a divorcing couple’s items is to inventory what was purchased before the marriage and what was purchased after the marriage.

Property acquired before the marriage date is non-marital property.

Any item acquired before the marriage date shall be presumed non-marital by an Illinois divorce if it was “acquired before the marriage” 750 ILCS 5/503(a)(6)

Non-marital property will stay with whomever acquired that property.

“[T]he court shall assign each spouse’s non-marital property to that spouse.” 750 LCS 5/503(d)

Dividing items into non-marital and marital piles is easy enough if both parties to the divorce remember and agree what was purchased prior to the marriage date. Verifying the acquisition date of each item becomes difficult when a couple lives together before marriage (which most people do today) because items acquired as a cohabitating non-married couple are still non-marital if purchased before the date of marriage.

“Property acquired prior to a marriage that would otherwise be non-marital property shall not be deemed to be marital property solely because the property was acquired in contemplation of marriage.” 750 ILCS 5/503

The intention that the item was purchased for both people means nothing if the purchase date was prior to the marriage date.

If there’s a disagreement as to the acquisition date of a personal item, how does a divorcing couple resolve that disagreement?

In the event of a disagreement, the divorcing couple must each present their evidence of the disputed items acquisition date. This will almost always be based on their own memory and their own testimony. Thus, the acquisition date becomes a question of which couple’s testimony is the most credible to the court. The court will then determine if the item is marital or non-marital.

“The court shall make specific factual findings as to its classification of assets as marital or non-marital property” 750 ILCS 5/503(a)

Marital Property May Be Divisible

“”[M]arital property” means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 5/503(a)

Once marital property is identified by a court, that court “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503(d).

Realistically, all of the household items such as furniture, appliances, etc. are marital property. The courts do NOT want to go through a list of chaise lounges and washing machines to determine who gets what. Some courts will even refuse to do so as it implies that the litigants aren’t approaching even the most mundane matters in their divorce with good faith.

If forced to divide marital household and personal items, an Illinois divorce court is under no obligation to divide the items 50/50 by either number or value.

“The [Illinois Marriage and Dissolution of Marriage] Act and  does not require an equal division of marital property…it requires an equitable division.” IN RE MARRIAGE OF DEMAR, 897 NE 2d 322 – Ill: Appellate Court, 1st Dist., 1st Div. 2008

This means there will be no valuation of the individual items and a totaling of the value each party receives with a subsequent equalizer payment for the spouse who got greater value.

The court will consider the “value of the property assigned to each spouse” 750 ILCS 5/503(d)(3). Courts will also consider “needs of each of the parties” 750 ILCS 5/503(d)(8).

So, if one party needs a wheelchair, they will get that. But, if that wheelchair is made of solid gold, the other spouse might get the flatwear and china.

If any marital property is encumbered by a debt or installment loan, whichever party is willing to be responsible for that debt will likely be awarded the item associated with that debt.

Illinois divorce courts are for more open to considering arguments as to whether seemingly marital property, in fact, is non-marital property due to the statutory exceptions.

Household And Personal Items That Can Be Deemed Non-Marital If Aquired After The Marriage Date.

If some item was purchased or exchanged after the marriage date for an item that either party owned before the marriage date then it will qualify as non-marital. In Illinois, non-marital property is “property acquired in exchange for property acquired before the marriage” 750 ILCS 5/503(a)(2)

It would be unusual if a person would trade a pre-marital dishwasher for a post-marital toaster. What’s more likely is that a household or personal item would be purchased with a bank account that was non-marital thus rendering the new item non-marital.

Property the parties acquired after the marriage but will be deemed non-marital if the “property was acquired by gift, legacy or descent” 750 ILCS 5/503 

Property acquired by “legacy or decent” is an inheritance and will be easy to identify as that property will be listed in the decedent’s will.

Property acquired by gift usually doesn’t have a written formality. But, there are some rules we can lean on.

“In Illinois, a transfer from parent to child is presumed to be a gift [to that child]” In re Marriage of Rosen, 467 NE 2d 962 – Ill: Appellate Court, 1st Dist. 1984

Other gifts may be interpreted as a gift to the couple or a gift to the marriage. Whether a gift was to an individual member of the marriage or to the marriage as a whole will be determined by the facts. For example, a gift on one spouse’s birthday is probably a gift to that spouse individually whereas a gift with a a card that says, “To Fred and Wilma” will probably be deemed a gift to the marriage and thus divisible.

An item can even become non-marital if one party purchases the item as a gift for the other party. “In Illinois there exists a presumption of gift where a transfer of property is made from one spouse to another…but the gift must be proven by clear, convincing, and unmistakable evidence to overcome the presumption that all property acquired subsequent to the marriage is marital.” In re Marriage of Weiler, 629 NE 2d 1216 – Ill: Appellate Court, 5th Dist. 1994

This rule covers most jewelry and keepsakes…the personal items divorcing couples actually fight over.

Whenever jewelry and divorce is discussed, the Illinois rule regarding engagement rings must be restated. “[The] rule is that an engagement ring is a gift conditional on the subsequent marriage of the parties, and when the condition is not fulfilled, the donee no longer has any right to the ring.” Vann v. Vehrs, 633 NE 2d 102 – Ill: Appellate Court, 2nd Dist. 1994. So, if the wedding happened, the receiver of the engagement ring gets to keep the engagement ring.

If you are fighting with your spouse over household items, then you are not having an amicable divorce and you need a divorce attorney to resolve this dispute and the other disputes which will surely arise. Contact my Chicago, Illinois family law firm to schedule a free, no-obligation consultation with an experienced Chicago divorce attorney.