Know the rules as you prepare for the next stage of life
In any divorce where the spouses own significant assets, many of the big questions involve division of property. Who gets the house? Who gets the car? How are retirement accounts and other assets divided?
In Illinois, property division is a two-step process. The court must first determine which property is divisible, then decide on an equitable—not necessarily equal—split of that property. Here’s what you need to know about property division in Illinois divorces.
The first step is to distinguish between marital and non-marital property
Not everything you own is subject to division. Before the court can decide how to actually decide the property, it must take an inventory of your assets and categorize each one as either marital or non-marital.
- Marital property is almost any asset that either spouse acquired during the marriage, regardless of whose name is listed on the property itself. For example, if you purchased a piece of land while you were married, that is most likely marital property, even if only your name is on the deed.
- Non-marital property, also known as separate property, is generally property acquired by one spouse prior to the marriage and not put into co-ownership at any point. Inheritances and gifts that were received solely in one spouse’s name are also usually considered separate property.
Because people’s finances typically become closely intertwined during marriage, it is not always easy for the court to determine whether something is marital or non-marital for property division purposes. For example, if one spouse inherited a house in their own name, but the other spouse invested a great deal of their own money and time into maintaining or improving the house, then the court might rule that the house or at least a portion of the equity in the house is marital property.
In addition, a prenuptial or postnuptial agreement can be used to designate certain pieces of property as either marital or non-marital property.
Then, the court decides how to divide the marital property
Illinois uses the “equitable division” rule to divide marital property between the divorcing spouses. An “equitable” split means that the distribution of assets is supposed to be fair, but not necessarily 50/50. The court can take into account many factors when determining what to do with your property, including but not limited to:
- Each spouse’s economic circumstances, occupation, age, health, financial needs, obligations, and opportunities to acquire more assets and income;
- Each spouse’s contributions to acquiring, preserving, and increasing the value of the marital property;
- Each spouse’s contributions to wasting or decreasing the value of the marital property;
- The length of the marriage;
- Whether a spouse is receiving alimony; and
- Other factors the court may consider relevant.
This is a flexible standard because courts understand they need to sort out the many financial and non-financial contributions each spouse made to the marriage. If one spouse worked a high-paying job and the other was a stay-at-home parent, for instance, that doesn’t necessarily mean the spouse who directly earned the money is entitled to most of the property. Rather, the court considers the value provided by the stay-at-home parent in caring for the children and enabling the other parent to work.
The rules of equitable division mean that the court has a lot of discretion in how to divide your assets. It also means the court will generally accept a plan agreed upon by the parties unless that plan is obviously unfair. These are some of the reasons why an experienced divorce attorney can make a significant difference.
The right attorney can help you navigate property division
At both stages of the court’s property division process, having experienced legal advice can make all the difference. If there are disputes over which property is considered marital or non-marital at all, an experienced divorce attorney can advocate for your best interests in that dispute. Likewise, during the division of property itself, your lawyer can pursue the best realistic outcome that serves your needs and ensures that you keep your fair share of the marital property.
In many cases, it’s possible to work out a mutually beneficial division of property that ensures both spouses are taken care of and minimizes your financial entanglement with each other after the divorce. In other cases, litigation is necessary to protect your rights and interests in this process. Either way, having the right divorce lawyer will make all the difference. If you are moving toward divorce and have questions about how your property will be divided, give us a call or contact us online to speak with an experienced attorney at Courtney Clark Law, P.C.