The default rule in an Illinois divorce is whatever you came into a marriage with…you can leave the marriage with. The distinction between premarital and marital (thus, divisible) assets is crucial to determining who gets what in an Illinois divorce. The subrule is that premarital assets that become blended or commingled with marital assets, those premarital assets take on the marital character and become divisible…much to the chagrin of the person who used to own the formerly premarital asset. Transmutation In An Illinois Divorce This blending of assets is called transmutation. Transmutation is “A change in the nature of something; esp., in family law, the transformation of separate property into marital property, or of marital property into separate property.” Black’s Law Dictionary (11th ed. 2019) “Transmutation is based on the presumption that the owner of the nonmarital property intended to make a gift of it to the marital estate.” In re Marriage of Vondra, 2016 IL App (1st) 150793 “The placing of nonmarital property in joint tenancy or some other form of co-ownership with the other spouse will raise a presumption that a gift was made to the marital estate, and the property will become marital property.” In re Marriage of Benz, 165 Ill. App. 3d 273, 280 (Ill. App. Ct. 1988) Once the transmutation occurs, is the property transmuted now completely divisible in an Illinois divorce? Perhaps. There may be a way to claw back the property into a non-marital, non-divisible status: by making a conversion claim. A Conversion Claim As A Way To Undo Transmutation A claim is “the assertion of an existing right” Black’s Law Dictionary (11th ed. 2019) An Illinois resident’s rights are found in both the constitutions, the statutes and the case law. The petition for dissolution of marriage is only one claim. There are many other claims available to a person getting divorced in Illinois. Conversion is a separate claim, a separate existing right that a divorcing Illinois resident can invoke. “To state a cause of action for conversion, a plaintiff must prove that: (1) she has a right to the property at issue; (2) she has an absolute and unconditional right to the immediate possession of that property; (3) the defendant wrongfully and without authorization assumed control, dominion, or ownership over the property; and (4) she made a demand for the return of the property.” Weisberger v. Weisberger, No. 1-10-1557, 12-13 (Ill. App. Ct. 2011) It is not difficult […]
