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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 dividing property, the Illinois court considers all relevant factors including the contribution of each party to the value of the property, particularly the contribution of a spouse as a homemaker, the value of the property distributed to each spouse, the length of the marriage, the financial situation of each spouse when the property is divided, (such as the need to give the family home to the spouse who has custody of the children), any obligations and rights arising from a prior marriage of either party, the age, health, station, occupation, income, vocational skills, employability, estate, liabilities, and needs of each of the parties, the custody of any children, and the reasonable opportunity of each spouse for future acquisition of capital assets and income.
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