Dividing property can get complex, with many legal factors to consider. Here’s what to know about dividing property in an Illinois divorce.
When dividing property, states follow a community property or equitable distribution approach. Illinois is an equitable distribution state, meaning the Illinois law requires only marital property is subject to division during a divorce. The court will consider several factors to reach a fair and equitable distribution.
Equitable Distribution in Illinois
Illinois is an equitable distribution state, meaning the court must divide the spouses’ property fairly and equitably. A fair and equitable manner does not require an even distribution. The first step when dividing property is to distinguish between marital property and separate property. Separate property, unlike marital property, is property a spouse owns before marriage and is not subject to division.
What is Marital Property?
- Real property either spouse purchases during the marriage
- Personal property either spouse purchases during the marriage (cars, boats, furniture, art pieces)
- Cash, bank accounts (retirement, pension, etc.) either spouse earns during the marriage
- Any gifts spouses bought each other
What is Separate Property?
- Property a spouse owns before marriage
- Property left to the spouse in an inheritance or will
- Property the spouse received as a gift
- Property a spouse is obligated due according to any agreements made before a divorce
- A court judgment awards property to a spouse from their partner
Factors in Determining an Equitable Property Division:
- Any prenuptial or postnuptial agreements
- Each spouse’s age and health
- The duration of the marriage
- Whether either spouse will receive spousal support
- Each spouse’s occupation or livelihood
- The financial needs or debt of each spouse
- The value of property owned by each spouse
- Any obligations of the spouse to prior marriages
- Custody arrangements
- Any tax burdens from property division
- Any factors affecting the spouse’s ability to generate income in the future
- How much either spouse contributed to the marriage
- Economic circumstances of each spouse
The court assigns a monetary value to each item regarded as marital property. Spouses can settle the divorce arrangements independently by deciding whether a fair division exists through a divorce settlement agreement. If so, a judge will review the proposed settlement agreement so spouses may grant approval to finalize the settlement. If neither spouse can reach a fair negotiation, both parties may need to pursue divorce litigation to resolve any disputes. A divorce attorney can provide spouses with the proper legal assistance and guidance required to smoothen the divorce process, as well as representation in court.
FAQs About Dividing Property in an Illinois Divorce
Related: Illinois Divorce FAQs
Does the division of property include marital misconduct?
No, marital misconduct is not a factor determining the division of property. Illinois is a no-fault divorce state.
How does the length of marriage change how property is divided?
The finances and property of each spouse tend to interfere more with each other in a long marriage. The court would handle a shorter marriage differently because it is easier to divide marital assets based on the contributions of each spouse.
How is debt divided in Illinois during a divorce?
Illinois distributes debt in a fair and equitable manner, with the exception of debt belonging to the spouse before marriage. Marital debt includes credit cards, mortgages, loans, etc.
Who gets ownership of the marital home during a divorce?
If both spouses contribute equally to the mortgage payments of the marital home, the home is divided equitably. In marriages involving children, the court will award the house to the custodial parent who cares for the children. However, if neither spouse can afford to pay for the home’s mortgage after finalizing a divorce, the court will sell the house and allow the spouses to divide the proceedings.