TRANSMUTATION OF MARITAL AND NON-MARITAL PROPERTY

One of the main issues besides child custody, child support, and maintenance/spousal support that divorcing couples often face during the divorce proceeding is the division of property. There are two types of property: marital and non-marital. In the state of Illinois there is a presumption that the property acquired during the marriage is marital (see our article on division of property for more details).  Typically, non-marital property is not divided in a divorce.  However, if non-marital property is “comingled” with marital property, it may be considered martial property and therefore will be considered for division among the parties as part of the divorce.

The process of commingling marital property with non-marital property is called transmutation. Section 503(c)(1) of the Illinois Marriage and Dissolution of Act states that “when marital and non-marital property are commingled by contributing one estate of property into another resulting in a loss of identity of the contributed property, the classification of the contributed property is transmuted to the estate receiving the contribution.”  Therefore, non-marital property becomes marital. Under the Illinois statute, transmutation occurs if two elements are satisfied: (1) marital and non-marital assets have been commingled; and (2) the commingling resulted in a loss of identity between the marital and non-marital property. The second element, loss of identity between the marital and non-marital property, is the most challenging one for parties to prove because once the property is mixed there is a presumption that the owner of the non-marital property intended to make a gift of the property to the marital estate. However, this presumption can be rebutted/overcome. Simply tracing funds from non-marital into marital account is not enough to prove transmutation. Illinois courts have been applying the Conduit Rule when determining where transmutation occurred. Under this rule, non-marital funds transferred into the marital account which is merely used as conduit through which the non-marital funds flows, does not lose its identity and, therefore, no transmutation occurs. One of the factors the courts consider when applying the Conduit rule is the length of time non-marital and marital funds have been comingled. The longer the period of time during which marital and non-marital funds were mixed, the more likely the court to find that the non-marital funds were not merely flowing through but rather were gifted to the marital account and therefore, transmutation occurred.

Another factor that the court will consider when making a determination whether transmutation has occurred is the amount of money that was mixed. If a large sum of marital funds is mixed with a smaller sum of non-marital funds, the court will more likely find that transmutation occurred and non-marital property became marital property. Finally, the court will also look at whether a party intended to gift non-marital property to the marital estate. Shall the court determine that such donative intent existed, it will find that transmutation occurred. Although transmutation cases are not as black and white as they may seem to be, these are the basic factors that Illinois courts consider in determining whether transmutation occurred.

To schedule a consultation with a dedicated and experienced family law attorney serving Will County, Dupage County, and Kendall County, call Navarro Family Law today at (815) 207-9570.

The information on this site is not legal advice.  Retain an attorney licensed in the state which has jurisdiction over your matter before taking any action which affects your legal issues, legal marital status or custody arrangements, and follow the advice of your retained lawyer.  

(815) 207-9570

Call to schedule an initial consultation

Visitation rights: I cannot see my child. What can I do?

Illinois law strongly favors maximum involvement by both parents in their children’s lives. This includes the right of both parents to visit and spend time with their children. Even though one parent may have been granted the majority of parenting time, or was granted decision-making responsibilities over all major areas of the child’s life, the other parent still has the right to enjoy time with the child. Visitation rights are strongly encouraged by Illinois courts, and are only taken away in circumstances where a parent poses a serious danger to the child.

If the other parent of your child is denying you the right to see your child, or is concealing the child’s location from you, the family law attorneys at Bugarsky & Navarro can bring your case in front of a judge and fight for your rights to parenting time. If a previous court order was in place granting you a visitation schedule, and the other parent is refusing to follow this schedule, he or she may be in violation of the court order. Our family law attorneys can file a petition to bring this violation to the attention of a judge. If no previous court order has been granted, we can file a petition and ask that the court grant you a reasonable visitation schedule.

Alienation

In some cases, one parent will instill bad feelings in the children towards the other parent, or will discourage the children from wanting to spend time with the other parent. This is called parental alienation, and numerous psychological studies have shown that this can be damaging to a child’s mental health. Illinois judges generally want both parents to cooperate in encouraging a close and loving relationship between the children and each parent. If you feel your children may be at risk of alienation by the other parent, the divorce and custody attorneys at Bugarsky & Navarro can ask a judge to put a court order in place prohibiting both parents from engaging in such alienating behavior which would discourage a healthy relationship between the children and parents.

If you have not seen your children for a long time, despite your attempts to reach out and contact them, a judge may want to exercise a certain degree of caution during the process of reunifying your relationship with the children. This may be especially true when the children are at a young age. A judge may order that a neutral attorney, such as a Guardian Ad Litem or Child Representative be appointed to your case. This attorney’s role would be to represent the interests of your children. The attorney would investigate the facts of your case by speaking to both parents and the children, and would report back to the judge as to his or her recommendations going forward with the case. A judge may also order that counseling sessions take place between you, your child, and a therapist to help carefully ease the reunification process. The time span of this process may be frustrating, however it is important to understand that a judge would be taking these precautions for the health and best interests of your children. Court proceedings can have a serious effect on a child’s mental or emotional health, and judges often determine in certain cases that such counseling sessions are the safest way to begin facilitating a reunification between a parent and an alienated child.

(815) 207-9570

Call to schedule an initial consultation

To schedule a consultation with a dedicated and experienced family law attorney serving Will County, Dupage County, and Kendall County, call Navarro Family Law today at (815) 207-9570.

The information on this site is not legal advice.  Retain an attorney licensed in the state which has jurisdiction over your matter before taking any action which affects your legal issues, legal marital status or custody arrangements, and follow the advice of your retained lawyer.  

Will I have to pay alimony?  Can I receive alimony?

Alimony, called “maintenance” in Illinois, refers to monetary payments that one spouse may be ordered to pay to the other spouse during or after divorce proceedings.

In the State of Illinois, before maintenance is awarded to one of the parties in the divorce proceeding, the court must determine whether an award of maintenance is appropriate. In making that determination, Illinois courts consider the following factors under Section 504:

• The income and property of each party
• The needs of each party
• The present and future earning capacity of each party
• Any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage;
• The time necessary to enable the part seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment or is the custodian of a child making it appropriate that the custodian not seek employment;
• The standard of living established during the marriage
• The duration of the marriage
• The age and the physical and emotional condition of both parties
• The tax consequences of the property division upon the respective economic circumstances of the parties, and other factors that court finds just and equitable.

Before January 1st, 2015, there was no formula for calculating maintenance/spousal support in Illinois such as the one that exists for calculating a child support. However, Governor Quinn signed a Bill that dramatically changed previous maintenance provisions of the Illinois Marriage and Dissolution of Marriage Act. The new Maintenance Law that provides a formula for calculating the amount and duration of maintenance has gone into effect on January 1, 2015. See our article on the New Maintenance Law for more information.

To schedule a consultation with a dedicated and experienced family law attorney serving Will County, Dupage County, and Kendall County, call Navarro Family Law today at (815) 207-9570.

The information on this site is not legal advice.  Retain an attorney licensed in the state which has jurisdiction over your matter before taking any action which affects your legal issues, legal marital status or custody arrangements, and follow the advice of your retained lawyer.  

Change of Custody: Can I modify the child custody arrangement?

Illinois courts favor consistency for children, and therefore, do not favor a change in prior custody judgments and agreements, unless necessary to serve the best interest of a child. In order to modify a prior custody judgment or agreement, you must file a Motion to Modify Custody.  This motion can only be filed:

(1) Two years after the custody judgment date. A party filing such motion has to prove that:

(a) a change has occurred in the circumstances of the child or his custodian and

(b) the modification is necessary to serve the best interest of the child.

OR

(2) If both parents agree to modify custody judgment. If both parents agree to modification of the custody judgment, they don’t have to wait until two years has passed from the date of the original custody judgment. The parents will have to file a Motion to Modify Custody Judgment in which they would state they both have agreed to such modification and that such modification is in the best interest of a child.

OR

(3) If a child’s present environment may endanger seriously his physical, mental, moral, or emotional health. You can modify custody judgment before two years have passed since the date of the custody order, if a child’s present environment may seriously endanger his physical, mental, moral, or emotional health. In order to modify custody judgment based on child endangerment, you must file a Motion to Modify Custody Judgment and attach an Affidavit stating that there is a reason to believe that child’s present environment may endanger seriously his physical, mental, moral, or emotional health and describe reason for such belief.

To schedule a consultation with a dedicated and experienced family law attorney serving Will County, Dupage County, and Kendall County, call Navarro Family Law today at (815) 207-9570.

The information on this site is not legal advice.  Retain an attorney licensed in the state which has jurisdiction over your matter before taking any action which affects your legal issues, legal marital status or custody arrangements, and follow the advice of your retained lawyer.  

APPOINTMENT OF GUARDIAN AD LITEM (GAL) IN ILLINOIS

A Guardian Ad Litem (GAL) is an attorney appointed by the judge to represent the minor children in a parentage case.  When both parents have a disagreement regarding custody, visitation, or if there are questions as to the safety of the child being around either parent, a judge may choose to appoint a GAL to further examine the situation.  The role of the GAL is to evaluate the relationship and circumstances among the children and parents, and make recommendations to the judge as to what would be in the best interests of the children.  After meeting with the parents, the children, and conducting investigations as necessary, the GAL will report back to the judge and either submit a written report or testify at trial.  The GAL may testify as a witness on cross-examination and can fully participate in pre-trial discovery and at trial.

In considering the best interests of the child in relation to custody, the GAL will review the following factors: the wishes of the child and child’s parents as to the custody arrangement; the relationships of the child with his or her siblings, parents, and other persons; the child’s adjustment to his or her surroundings; the mental and physical state of the parents and children; whether each parent is facilitating a relationship between the child and the other parent; and whether there is abuse or violence.

In Illinois there is no statutory requirement for GAL, Guardian ad Litem, to be appointed, unless the court finds that there is a potential conflict between the child’s interests and a parent’s interests. Therefore, Illinois courts, including Will county courts, will be obligated to appoint a GAL only if there is a finding of a potential conflict between the child’s interests and a parent’s interests. This does not mean, however, that the court cannot appoint the GAL. Pursuant to 750 ILCS 5/506 (a), the court “may appoint” a GAL in family law cases. Therefore, the appointment of the GAL is a matter of discretion for the family law court.

In contrast to the attorney for the child or child representative, GAL is not obligated to keep confidential information that he/she learned from the child, parents, or others during the investigation. The only exception to this rule is information about mental health and drug and alcohol treatment, as confidentiality of such information is protected by State and Federal statutes.

To schedule a consultation with a dedicated and experienced family law attorney serving Will County, Dupage County, and Kendall County, call Navarro Family Law today at (815) 207-9570.

The information on this site is not legal advice.  Retain an attorney licensed in the state which has jurisdiction over your matter before taking any action which affects your legal issues, legal marital status or custody arrangements, and follow the advice of your retained lawyer.