Property Rights in a Marriage

In a marriage, property rights are divided by the court, unless the parties can agree on their own to the terms of the property rights. Basically, all property incurred or earned during the marriage is presumptively marital property, unless the court orders otherwise. For example, if the parties purchased real estate during the course of their marriage, if the parties acquire income that goes into accounts during the marriage, if the parties acquire earnings, retirement, dividends, royalties during the marriage, those items are presumptively marital property subject to division under the Illinois Marriage and Dissolution of Marriage Act.

Many times, parties can simply divide the property equally or make some sort of accommodation where both parties are happy with the division. In other cases, you have situations where one party feels that they earned all the money, they purchased all the property, the other party didn’t do anything, and therefore he or she shouldn’t receive an equitable share.

That is what attorneys come into play for, to advise their clients on the legality of property incurred or earned during the marriage. After a short meeting with your client, you should be able to understand that property incurred during the marriage is, in fact, marital property subject to division.

Many clients have a problem understanding that retirement benefits – 401(k), pensions, and profit-sharing plans that are incurred during the marriage are, in fact, marital property. Many of my clients feel that they earned the retirement; therefore, they should be able to keep that free and clear. Unfortunately for them, they need to learn that marital property includes pension, profit-sharing, and retirement accounts earned during the marriage, and they are subject to division.

So property rights are something that need to be talked about with your client, they need to be negotiated with the other side, and in the event that you can’t reach an agreement or negotiations fail, then it is brought to the court’s attention and the court will actually make the award of marital property towards the conclusion of the case.

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