Can Conversion Reverse the Commingling of Separate Assets?

 Posted on November 15, 2024 in Division of Property

Many spouses are stunned when they find out during their divorce that the property, gift, or inheritance they believed was their separate property turns out to be a marital asset, thanks to commingling. If a person owns a home or other property, has an inheritance, or has amassed a sizeable bank account before marriage, these assets belong to that spouse alone unless they have been commingled.

Commingling occurs when a separate asset is mixed in with marital assets, changing it into a marital asset, subject to division. Suppose one spouse owns a home that was left to him or her by great-aunt Ruth. If the spouse who owns the home adds the other spouse to the title, it immediately becomes marital property. There are other, less obvious, and often unintentional ways property can be commingled.

Even without placing the other spouse on the deed, if marital funds are used to make improvements to the property, at least a portion of the home becomes marital property. If the other spouse works on the home extensively, at least a portion of the home becomes marital property. If one spouse is given a gift or inheritance before or during the marriage, the presumption is that it is separate property unless it is commingled.

So, once a property has been commingled, is there anything to be done about it to maintain its separate status during a divorce? There is one potential way to keep property you believe is separate during a divorce. This is known as conversion. If you are considering divorce, speak to an experienced St. Charles, IL family law attorney from The Law Office of Matthew M. Williams, P.C..

What Is a Conversion Claim?

The blending of separate assets into marital assets is known as commingling or transmutation. Both of these terms are based on the presumption that the owner of the nonmarital property intended to make a gift of it to the marital estate. One potential way to reclaim separate property is by making a conversion claim.

A conversion claim is the assertion of an existing right and is a separate claim or separate existing right that a divorcing spouse in Illinois can potentially invoke. To claim conversion, the spouse who asserts a certain property or asset is separate must prove that:

• He or she has a right to the property or asset.
• He or she has an absolute and unconditional right to the immediate possession of the property.
•  His or her spouse wrongfully assumed control, dominion, or ownership of the property.
• The spouse who originally owned the separate property now demands the return of the property.

If a conversion claim is successful, the standard remedy is to return the property to the spouse who originally owned it as separate property, not subject to the division of marital assets. Whether or not conversion is successful for you in your specific situation will depend on many things.

Did you willingly and knowingly allow the asset or property to become commingled, therefore, marital property? Perhaps you always intended to keep the property separate, yet now your spouse is claiming that because he or she helped you paint a wall, the house is marital property.  

Only a knowledgeable asset division attorney can help you sort out those details and determine whether a claim of conversion is likely to be successful. If you are about to marry or have recently married, you might consider a prenuptial or postnuptial agreement, which will make clear what property and assets are your separate property and not subject to marital property division during a divorce.

Contact a Kane County, IL Marital and Nonmarital Property Lawyer

If your spouse is claiming your separate property is half his or hers, but you believe otherwise, it is in your best interests to speak to an Aurora, IL marital and nonmarital property attorney with The Law Office of Matthew M. Williams, P.C.. Attorney Matthew M. Williams has extensive experience in asset division during a divorce. He focuses his practice on mediation and collaborative divorce to reduce costs and make the process easier. Call 630-409-8184 to schedule an appointment with a highly qualified lawyer.