You asked: “Am I entitled to any of the marital assets in divorce, specifically one-half of the down payment on our home that is titled in my husbands name? (We live in Illinois)”
Answer: The answer really depends on whether the home belonged to your husband before you got married or whether you purchased the home together after your marriage. In Illinois, all property acquired by either spouse after the marriage and before a judgment of divorce, is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co ownership such as joint tenancy, tenancy in common, tenancy by the entirety, or community property. So, even though the two of you may have purchased the home and placed it in your husband’s name because he earned the income, you may be entitled to some portion of the asset if it was acquired during marriage. Now this outcome may change if any gifting occurred. For example, even though the home was purchased during the marriage, if you gave your marital share of the residence to your husband, this could change the character of your property and it could be considered your husband’s non-marital property.
Now, there are three concepts in play in Illinois that may apply here. The first is “commingling.” When a non-marital asset is combined with or added to a marital asset this is called commingling. The same applies in reverse – a marital asset can be commingled with a non-marital asset as well. The next concept is “transmutation” which means that commingled property transmutes or becomes that with which it is commingled. For example, $5000.00 of separate property is deposited into (or commingled with) a marital bank account. That non-marital $5000.00 transmutes (or becomes) marital funds. The third concept is called “tracing” which is a procedure that determines the origin of commingled property. If a spouse is questioning or challenging an asset, tracing is one way that parties can determine the original character of an asset.
That said, in terms of distribution at divorce, Illinois is considered an “equitable distribution” state. Equitable does not mean equal, but rather what is fair. The court will divide the marital property considering all relevant factors, including things like: The parties respective contributions, the value of the other property assigned to each spouse; the duration of the marriage and the economic circumstances of each spouse when the division of property is to become effective for example. So, if the court considered it fair and equitable, you could receive assets equal to one-half of the equity in the home.
This article is not legal or financial advice. You should contact a lawyer, accountant and/or financial professional in your state to discuss the specifics or your case and applicable laws.
