Yes, you can appeal a property division order, which is a legal ruling issued by a judge determining how various assets and liabilities are split because of divorce. That said, there are specific circumstances and time frames involved, so having legal help is highly recommended. Once the window for appealing passes, the property division order is considered final and cannot be modified, unlike other family law orders, including child support. This is also different from a negotiated settlement reached between the spouse’s lawyers or through the mediation process; once the settlement is finalized, it cannot be appealed or modified.
What Are the Types of Property Included in a Property Division Order?
There are two buckets of property that are divided in a divorce: Marital property and separate property.
- Marital property. Illinois is an equitable distribution state, meaning everything considered marital property will be part of the property division. That means everything from real estate, cars, retirement funds, furniture, and other assets or liabilities, such as joint credit card debt. It doesn’t matter which spouse is listed on a title to a specific item. If it was acquired during the marriage, it’s marital property (with the possible exception of inheritance, as explained under separate property).
- Separate property. This is the property that belongs strictly to one spouse. It was either acquired before the marriage (whether by gift, legacy, or purchase) or it was acquired after legal separation from the spouse was established. It also includes income or an increase in value of a separate property item or property received in exchange for a nonmarital item. An inheritance can be considered separate property even if it’s received during the marriage as long as the inheritor keeps it strictly separate. That means not adding the spouse’s name to the bank account with the inheritance and not using the inheritance to do things like improving the home the couple lives in. The rules around inheritance are very tricky, so talking to a family law attorney is advised.
How Are Property Division Orders Determined?
Illinois is not a community property state, in which marital property is divided evenly down the middle. Instead, Illinois is an equitable property state, which means the court will divide the property based on what they think is fair. The first step the court takes is to determine which property is marital and which is separate. Once that’s been finalized, the judge will then begin the process of dividing the marital property.
Because it’s not a strict 50/50 division, the judge has to keep several factors in mind, including:
- Length of the marriage
- Where each spouse stands financially
- How each spouse contributed to the increase or decrease of the marital property’s value
- The standard of living achieved in the marriage and the time and expense it would take one spouse to be able to maintain that standard on their own
- Any pre- or postnuptial agreements
- Outstanding debts and liabilities
- Whether one parent will have custody and need the family home
- Whether one spouse did not pursue career goals in order to raise the children or support the other spouse
What Is Required to Appeal a Property Division Order?
Time is very much of the essence in the appeals process. The appeal must be filed within 30 days of the final order. If the appeal isn’t filed in that time frame, it’s highly unlikely that anything can be changed. One exception is if one spouse deliberately concealed assets from the other. That can be difficult to prove, not least because the intent to conceal has to be proven. It’s not enough to say the other spouse didn’t know about the assets.
Another important thing to understand about appealing a family law court order is that it’s not a redo. The higher court isn’t going to start from the beginning and work its way through the property. They will only look at the case as it was heard and decided by the first judge. That means that they’re not interested in whether or not they would have made different decisions than the first judge, but whether or not the first judge was fair and equitable.
What Is Abuse of Discretion?
In family law court, abuse of discretion occurs when the higher court determines that the first judge made decisions that ran counter to the testimony and evidence, ignored testimony and evidence, or did things such as suppress some witnesses’ testimony.
If the appeal is successful, the higher court will either send the case back to the lower court with explicit recommendations for what needs to be reviewed and rejudged, or they’ll reverse the decision altogether.
What Are Grounds for Filing an Appeal?
As noted above, it’s not enough to simply say someone doesn’t like the way the property was divided. They must have specific reasons for filing an appeal. There are cases where the original judge deemed one of the spouses not to be credible witnesses. That can be grounds for filing an appeal.
If the order doesn’t seem to take relevant testimony and evidence into account, that may be a reason to file an appeal. But there are many cases that the higher court won’t take. Our attorneys know these complicated appeal processes well, and we can help you understand what will or won’t work for an appeal.
What Do I Need to Do to Appeal a Property Division order?
Call us at 312-757-4833 for a no-obligation free consultation. Appeals of these types have strict requirements and deadlines, and if those aren’t followed, the appeal may never be heard or may be denied outright. Our family law attorneys are experienced with the appeals process, and we will endeavor to take you through it as smoothly as possible.