Once you decide to divorce, you face a number of issues that can either be solved quickly with a calm discussion or turn into a contentious battle. The division of property is one of those issues. Some spouses agree on how to divide their belongings, savings, and debt. They work it out by negotiation and present their plan to the court for approval. Other times there are arguments over who owns what, how much something is worth, and who deserves more. In these situations, you may need to ask the court to decide, in which case, you need to understand Illinois law in regard to property division during a divorce.
Identifying the Marital Estate
Before you and your spouse’s property can be divided, the court must determine which items are individually owned or part of the marital estate. The difference between marital and non-marital property is outline in Illinois statute 750 ILCS 5/503(a).
You and your spouse each get to keep your own property, which includes property:
- Acquired by gift or legacy
- Acquired before the marriage
- Acquired in exchange for property acquired before marriage or by gift or legacy
- Obtained after a judgment of legal separation
- Protected by a valid agreement, such as a pre-nuptial agreement
However, everything else is part of the marital estate, which must be divided either by agreement or court order. This encompasses all of the property you acquired together during the marriage, including (unless excluded as non-marital property):
- Real estate like your family home and any vacation homes
- Your household furnishings
- Vehicles
- Bank accounts
- Investments like stocks and bonds
- Retirement plans and pensions
- Business interests
If you and your spouse disagree on the ownership of funds, a parcel of real estate, or a piece of personal property, contact an experienced divorce attorney immediately. This may be an argument you can work out together or it may be a question for the court.
An Equitable Division of Property
According to 750 ILCS 5/503(d), the court will divide the marital estate based on any relevant factors except marital misconduct. An Illinois court will seek to fairly divide the marital property, yet will not take any extramarital affairs into account. Despite what you may have heard, you cannot argue for a greater amount of property after the marriage because your husband or wife cheated on you.
Factors That May Impact Property Division in a Divorce
When a judge must decide how to divide your marital property, he or she may take into account:
- Each of your contributions to acquire, preserve, or increase the value of property
- Any individual’s contribution to the marriage as a homemaker
- Any individual’s mismanagement or waste of marital property
- The duration of the marriage
- The economic circumstances of each individual when the divided property is to be distributed
- Each of your age, health, occupation, sources of income, skills, employability, and needs
- Each of your ability to generate income in the future
- The value of the property assigned to each spouse
- Custodial provisions for the kids
- Whether property will be in lieu of or in addition to alimony
- The tax consequences of the property division
What to Expect
You may go into a divorce expecting a 50/50 split, yet this is often not the case. The judge will decide what is fair based on the above factors and more, not based on what is exactly even. If you and your spouse have a great deal of property, then the process of valuing and dividing the martial estate may be lengthy and contentious. An experienced attorney can help you fight for the property you believe you deserve, whether you are interested in specific pieces or a certain value. However, you can also expect your spouse and his or her attorney to lobby the judge for certain items or a value as well.
Contact my Office for Legal Advice
If you are headed into a divorce and know the division of your marital property may get complicated, contact me at my office today at (312) 621-5234 to schedule an initial consultation and learn more about Illinois family law.
