It depends on whether the property was owned prior to the marriage or, for example, whether it was acquired by gift. Property that’s owned before the marriage is often classified as non-marital. That’s set aside as the separate property of the spouse who owned it prior to the marriage, and it becomes their property, free of any claim by the spouse that they’re in the process of divorcing from. For example, we’ll sometimes see a case where the wife owns a house from an earlier marriage and during this marriage, mortgage payments are made from the marital estate to satisfy an existing debt on the wife’s non-marital residence. Those cases can be fairly complicated. There’s going to be a claim by the marital estate for reimbursement for the amount that was paid on the mortgage on the wife’s separate house. How much is that reimbursement? Is it just going to be just the principal reduction on the debt? Is it going to be the interest that was paid? Is it going to be the property taxes that were paid to protect the property? There are all different kinds of considerations that go into that.
If there are multiple properties, it’s often the outcome that they’ll be divided on an equitable basis between the parties. Of particular interest to the court is if a property is an income-producing property. Can that help with the cash-flow needs of a spouse who is going to be receiving maintenance? Is that spouse in a position to manage, for example, a rental property? There are many different considerations that go into it, and all of those facts are presented to the court to enable it to make its determination as to how those multiple properties are divided between the divorcing parties.
Chuck Roberts is a family lawyer at Momkus McCluskey Roberts, LLC, one of the largest law firms in DuPage County, Illinois.
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