Under the Illinois Marriage and Dissolution of Marriage Act (the “IMDMA”) all property, acquired by either spouse after the marriage and before the marriage is dissolve or declared invalid, is presumed to be marital property and includes assets acquired by either spouse after court proceedings have begun. The presumption of marital property can only be overcome by a showing that the property in question was acquired by one of several methods specifically listed in subsections (a)(1-8) of section 503 of the IMDMA. These methods include, but are not limited to, property acquired:
- By gift, legacy or descent
- In exchange for property acquired before the marriage or gift, legacy or descent
- By a spouse after a judgment of legal separation
- By exclusion in a valid agreement of the parties
- By a judgment awarded to a spouse from the other spouse
- Before the marriage.
Identification and classification of all assets belonging to a divorcing couple
The IMDMA provides that, when a party’s marriage is dissolved, the court must assign each spouse’s nonmarital property to that spouse and must divide all of the marital property in just proportions (750 ILCS 5/503(d)). For that reason, it is extremely important not only that all property belonging to a divorcing couple be fully identified, but also that it be properly classified as marital or nonmarital.
In Illinois, each spouse is entitled to a full disclosure of all property and assets in which the other spouse have an interest. In many counties in Illinois, including Cook County, the initial disclosure of assets is accomplished by having each spouse complete a disclosure statement. The disclosure statement incorporates each spouse’s list of assets, categorized by type, as well as other information such as an asset’s claimed value, how the asset’s title is held, and claims regarding the asset’s marital/nonmarital status. This initial statement is a starting point for each spouse to obtain from the other full disclosure of all assets through depositions, subpoenas, interrogatories and other formal discovery methods.
The importance of full disclosure
It is essential that a spouse use all necessary methods of formal discovery to ensure that all assets of the parties have been completly disclosed before the divorce is finalized. A recent Illinois Appellate Court decision, In re Marriage of Goldsmith, has held that a spouse is not entitled to a share of a marital asset, not included in the final judgment for dissolution of marriage, where that spouse has failed to engage in sufficient formal discovery before the judgment’s entry.