The code does not specifically address all of the various types of marital assets; rather, they are affected by the elements of what establishes marital property, and the way it should be distributed. Contingent injury claims, and retirement accounts, and certain other kinds of marital assets necessitate consideration that is more detailed. However, essentially, common sense consideration of the factors of marital assets applies.
The value of the property is a question that is based on the evidence, which can be attended to either by expert testimony, or the owner of the property. It is presumed that the owner has some knowledge of the property; therefore, expert testimony is not required. However, expert testimony may be needed if it can be shown that the owner is incompetent because of unfamiliarity with the fundamental facts concerning the property’s estimate, (In Re: Vucic). In very complex instances, such as real estate or complicated retirement accounts are involved, expert testimony (a realtor or appraiser) is recommended. When there is considerable complexity involved, the valuation should be timed to be on the date of the dissolution, or as close as possible to the date of the trial as possible (In Re: Benkendorf- See also IMDMA 5/503(f)). In situations when there has been a substantial increase in value between the time the case was filed and when it went to trial, the increased value still must be used. It may be contended that the non-working party was not contributing to the increased value after the separation. However, the rebuttal to this is that the contributions of the other spouse while the parties were still living together contributed to the increased value.
The division of personal property essentially falls into one of two types; that which judges consider worthwhile, and the rest of it. Judges usually will just want to be involved in the division of tangible personal property when vehicles are involved. Clearly, automobiles are rather major assets, they also affect the abilities of the parties to work and transport any children to and from day care and school. Conversely, items such as chairs and end tables are considered insignificant, and the judges prefer that the spouses work out the division of these issues between themselves.
Of course, bank accounts are especially affected by issues such as dissipation, particularly since both parties have access to the funds in joint accounts during the course of the marriage, as well as after they have separated unless steps have been taken to close the accounts and divide the funds. The larger the balance is in the account, the more probable it is that a judge will become involved. Plainly, the judge will consider an account with an average balance of five dollars for the past few years, beneath noticing.
Real estate is typically a major cause for dispute. A great deal of the case law concerning what distinguishes marital property, the value, and the way it should be distributed involves real estate. It is important to note that the sale of real estate can be ordered by the court (5/503(i)); a party must request the sale of the marital home, however, even if it is a vaguely worded request. Judge ordered sales of real estate other than the marital home is frequently threatened, however is seldom actually executed.
The court might order that marital debt be reorganized in the context of the assets. If one party has used credit cards excessively, demonstrated by accumulated assets on credit, that party may be ordered to assume that burden of debt. However, acceptance of a benefit of the debt can cause someone still to have to pay a portion of the debt even though he or she did not take out the loan or cause the debt. The obligations between the spouses and their creditors are not altered even though the court has the authority to order reorganization of the debt. It is important to note that an order of dissolution of marriage and any associated settlement agreements does not relieve either party of his or her standing obligations. Court orders are usually effective only against either party of the divorce. The parties must make their own arrangements with their creditors, if possible, to modify any payment obligations.
Professional degrees and licenses are not considered marital assets. Instead, a degree or license is involved as a factor dividing the marital assets; a spouse may have the potential to earn a higher income due to the degree or license. This is a logical position because degrees and licenses cannot be bought and sold.
If either spouse is an attorney, marital assets will not include his or her contingent fees because there are restrictions on splitting fees with non-attorneys. Nevertheless, when setting maintenance, the said fees may be taken into consideration.
Personal injury awards and Workers’ compensation that have accrued during the marriage are deemed marital assets. Although these awards may be divided between the spouses, the suffering and pain of the spouse who was injured is a factor that is considered. The spouse who sustained the injury typically receives the larger share of the award. Even when the injury was sustained prior to the marriage, the portion that replaced lost wages after the marriage is marital property. The reason for this is because the award money is a replacement for income that would have been earned during the course of the marriage and therefore would have been a part of the marital estate.