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Transferring Non-Marital Home to Both Parties as Joint Tenants or Should Estate Planning Documents be Utilized
It is not unusual for one spouse to come into the marriage with a residence that is solely in his or her name.
If after the marriage, the home is transferred to both spouses to own as joint tenants, that can result in transmutation which means that what was previously non-marital property is then considered marital property in terms of dividing marital assets within a dissolution of marriage proceeding.
Once the transfer of real estate has occurred, with a conveyance of one spouse to both spouses as joint tenants or tenants in common, that cannot be undone or changed without the consent of both spouses.
On the other hand, if a spouse comes into the marriage with a home as non-marital property, that spouse can, through his or her estate planning documents, make provision for the other spouse. There is flexibility with this strategy in that the person owning the marital home can always change his or her estate planning documents to make alternative provisions and that avoids the issue of transmutation which may otherwise occur if the home, owned by one spouse, is transferred to both spouses after the marriage, to be held as joint tenants or tenants in common.
In deciding child custody, the Illinois court does not consider the gender of the custodial parent. The court considers all relevant factors including the wishes of the child's parents, the wishes of the child, the relationship of the child with the parents, siblings, and any other person who significantly affects the child's best interest, the child's adjustment to home, school, and community, the mental and physical health of everyone, any physical violence by the child's potential custodian, whether directed at the child or at another person, episodes of repeated abuse whether directed at the child or directed at another person, and the willingness and ability of each parent to encourage a close relationship between the other parent and the child.
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