How Can I Protect Items with Sentimental Value in My Illinois Divorce

 Posted on December 16, 2020 in Asset Division

The distribution of assets is an important element in most Illinois divorce cases, and it can often lead to misunderstandings and arguments between the spouses. Items with sentimental value may cause even more disagreements than higher-value assets such as the marital home or vehicles, as both spouses might have an emotional attachment, making them less agreeable to parting with a particular piece of property. If you are interested in keeping a family heirloom, a specific work of art, or any other item with sentimental value, there are some ways you might be able to do so.

Is the Item a Marital Asset?

Whether or not a sentimental item is considered marital property depends on several factors. The two most important factors are when and how the item was acquired. Under Illinois law, an asset is generally considered marital property if it was acquired by either spouse during the marriage. If the item in question was yours before you got married, you typically have the right to keep it following your divorce.

It also matters how the item was acquired. Property acquired during the marriage can be considered non-marital if it was received as an inheritance specifically to one spouse. This means that if you inherited an heirloom from a family member, it is likely to be considered yours and not subject to being divided in the divorce process. The same is true of a gift if it is made to just one spouse.  

How to Keep a Sentimental Asset

There are four basic scenarios that could play out regarding a sentimental item that you wish to keep. The first is the easiest because it is the situation in which the item is yours from the start, and it is considered non-marital. The second scenario—in which the item is considered marital but your spouse is not attached to the item—is almost as easy. In this case, you may need to offer your spouse an asset of similar financial value or one that is especially important to him or her in return for allowing you to keep what you want.

The third scenario is one in which the item is marital property, and both of you want it. In such a situation, you and your spouse will need to negotiate with one another to reach some type of agreement. You might need to "give up" more than what the item is worth, or you might agree that your child should get the asset instead of you continuing to fight about it. There is also the option of selling the item—if it has monetary value—and splitting the proceeds, but this outcome is probably not very appealing.

The last scenario is one in which the item is non-marital property, and it belongs to your spouse. This situation has the potential to be the most complex for you because you do not really have any legal claim to the item. If you wish to keep the sentimental item, you will essentially need to "buy" it from your spouse, either with additional marital property or by simply paying for it. If you and your spouse are not in a place to cooperate, there is probably little chance of you getting to keep the asset in question.

Contact a Wheaton Asset Division Lawyer

If you have additional questions about how sentimental items are treated in a divorce, contact an experienced DuPage County divorce lawyer at Andrew Cores Family Law Group. Call 630-871-1002 to schedule a free, no-obligation consultation with a member of our team today. We can help you understand your options and protect your rights along the way.

Source:

https://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2086&ChapterID=59