Property Division IN DIVORCE

Retirement Accounts

Courts typically divide the marital portion of each retirement asset between the parties. The marital portion of a retirement asset is usually identified as any contribution to that retirement asset after the date of the marriage. Retirement assets must be divided through a Qualified Domestic Relations Order (“QDRO”). Our office typically outsources the creation of a QDRO to an expert with whom we are familiar.

Business Valuators and Forensic Accountants

When one of the spouses owns an interest in a business, we recommend that the business needs to be appraised as part of the divorce. This is assigning a house to one of the spouses in the divorce. If the home is worth two million dollars with one million in equity and one spouse is keeping the home, the value of that asset is taken into account when dividing other assets in the divorce. The same principle applies if one spouse wants to keep his or her ownership interest in a business. There are professional business valuators who appraise businesses regularly. Some of these professionals have experience appraising a business for purposes of a divorce. We can provide you with names and we can work with business valuators that are frequently retained in Chicago divorce cases.

Some spouses hide assets and/or income from their spouse. Sometimes they have been concealing assets and/or income for all or part of the marriage. Other times, a spouse may start concealing assets and/or income because he or she is preparing for a divorce in the foreseeable future. If one of the spouses may be hiding assets or income, a forensic accountant can search for the assets and/or income. Forensic accounting is a specialized area of accounting that, according to Investopedia, “utilizes accounting, auditing, and investigative skills to conduct an examination into the finances of an individual or business. Forensic accounting provides an accounting analysis suitable to be used in legal proceedings. Forensic accountants are trained to look beyond the numbers and deal with the business reality of a situation. Forensic accounting is frequently used in fraud and embezzlement cases to explain the nature of a financial crime in court.”

The Doctrine of Dissipation

In Illinois there is a property distribution doctrine called “dissipation.” Dissipation occurs when one spouse spends money for a purpose unrelated to the marriage at a time when the marriage is undergoing an irretrievable breakdown. A common example is money spent on or gifted to a lover. But any secretive spending by one spouse that is not for a marital purpose is possibly dissipation if the required factors are present. This could include gambling, dubious “loans” to friends or family or high-risk investments.

Keep in mind that under Illinois law, living separate and apart does not require that the spouses live in different homes. If one spouse is sleeping in the guest room while the other is in the primary bedroom, that may be considered living separate and apart. In most cases, the separation date is not contested. If, however, there is potential dissipation, the date of separation may matter. If a spouse learns of the dissipation but then the spouses reconcile, the dissipation claim may be wiped out.