How Does Property Division Work in Illinois?

Ending a marriage is seldom an easy or pleasant experience. Oftentimes, people who have gone through a divorce describe it as one of the most complicated, emotional, costly and stressful experiences of their lives, although it’s possible to plan a smoother divorce process.

For many people, dividing the assets is one of the biggest challenges. Under Illinois divorce law, not all assets are treated the same. Marital assets are subject to division, while non-marital assets will stay with the original owner. It sounds simple, but it’s not always clear which assets are considered marital or non-marital.

Marital assets are those items of value acquired during the marriage. This may include items such as:

The marital home
Money earned by either party during the marriage
Retirement accounts
Vehicles
Businesses
Investments
Household items

Non-marital assets are items owned or acquired by one party before the marriage, and thus not subject to division. This may include items such as an inheritance or any belongings or investments one party brought into the marriage.

The line between marital and non-marital assets is not always clear.

For example, if one party already owned a home at the time of marriage, but both parties contributed to the mortgage and upkeep costs, the question of whether the home is considered a marital or non-marital asset under Illinois law may be in doubt.

Sometimes both parties are able to come to an agreement on property division by themselves or with the assistance of a mediator, and this may reduce the cost of the divorce. However, this is not possible in every case. And before you sign any agreement, it’s important for you to understand how property division laws work in Illinois. It’s also vital to consider how the property division fits into your divorce as a whole.

Illinois is an equitable distribution state, not a community property state. That means courts try to achieve a fair division of property and debt based on the law. In some cases, the court attempts to divide the assets 50-50, but in other cases, one spouse may be awarded a greater percentage of the marital property.

When making an equitable distribution, some of the factors the court may consider include:

The value of any marital property
The value of each party’s non-marital property
Each spouses’ earning capacity
The length of the marriage – a decade-long marriage will typically be treated differently than for one of very short duration
The contributions of each party to the marriage – financial and non-financial
The spending or dissipation of each party
Homemaking contributions – especially if one party dedicated himself or herself to caring for children instead of building a career
The relative health and age of each party
Whether a prenuptial or postnuptial agreement was in place
Any pre-existing divorce orders from previous divorces – the court will avoid a new order than conflicts with any previous order
The best interests of the children, if any
Tax implications for each party

What about marital misconduct?

Some people are surprised to learn that the state of Illinois does not take into consideration questions of marital misconduct. Thus, allegations of adultery are usually not considered by the court.

However, it is possible that some spending related to adultery may be considered dissipation. A good example would include cases in which one party spent marital funds on lavish gifts and vacations for an affair partner.

Dissipation may also include things like wasting money, hiding assets or allowing marital assets to be damaged; for example, deliberately sabotaging the family business.

If the marriage has not yet taken place, you may want to consider signing a prenuptial agreement before the ceremony. Such a document can help define whether various assets will be considered marital or non-marital in the event of a divorce.

Working with an experienced attorney can help you achieve a fair and equitable divorce that leaves you with the most favorable distribution of assets. When the time comes to make decisions about property division, turn to the family law services at Essig Law Office.

The Essig Law Office can help with all aspects of your divorce, including the question of defining each asset as marital or non-marital. Contact us at 309-248-5966. We are located at 135 Washington Square, Washington, IL 61571.

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