Is Equal Property Division Required in an Illinois Divorce?

 Posted on August 18, 2023 in Divorce

Of the various issues that must be resolved during a divorce, the division of marital property can be particularly challenging. In Illinois, the law states that marital property should be divided equitably between spouses in a divorce. However, this does not necessarily mean that all property will be split exactly equally. By understanding what factors will be considered when dividing marital assets, divorcing spouses make sure they are addressing this issue correctly, and they can make sure their rights will be protected as they make financial decisions and work to dissolve their marriages.

Marital Property vs. Separate Property

In Illinois divorces, not all property is subject to division between spouses. Only marital property will be considered when it comes to equitable distribution. Marital property refers to assets acquired during the course of the marriage, regardless of which spouse obtained them. Debts accrued by either spouse must also be divided during the divorce process.

Separate or non-marital property will include items that are owned solely by one spouse. They will typically consist of assets or debts that were acquired before a couple’s marriage or after their legal separation. For example, if an individual brings significant personal wealth into their marriage and keeps those funds or assets separate from shared accounts, they will be able to continue owning these assets. If either spouse receives inheritance money before or during the marriage and does not mix it with the couple’s joint assets, the inheritances will be separate property. A prenuptial or postnuptial agreement may also be used to exclude certain assets from the marital estate and ensure that they will not be divided in a divorce.

The Difference Between Equitable and Equal

For divorcing spouses, it is important to understand the difference between equitable distribution of assets and an equal division of property. An equal distribution would require a 50/50 split of marital property between spouses, and the value of one spouse’s portion of the marital estate would be exactly the same as the value of the other spouse’s share of marital property. However, this type of division is not required in Illinois, and instead, assets may be divided equitably, ensuring that each spouse receives a fair share of marital property that will provide them with the necessary financial resources to meet their needs after completing their divorce.

Factors Considered in Property Division

When dividing property equitably, there are a number of factors that may be considered to evaluate the spouses’ individual circumstances and make decisions that are fair and equitable. These factors are detailed in state law, and they include:

• The length of the marriage: In a shorter marriage, a couple may have fewer assets, making it easier to divide property equally or near-equally. In a long-term marriage, each spouse’s unique circumstances may be considered, and other arrangements may be made to address their ongoing needs and the sacrifices they have made to support their family.

• Economic circumstances: Each spouse's income-earning potential and financial resources may play a role in the decisions made during asset allocation. If one spouse earns significantly less or has fewer separate assets than the other, they may receive more of the couple’s shared assets to ensure that they will be able to meet their needs going forward.

• Custodial arrangements: When a couple has children, decisions about child custody and parenting time may play a role in how property will be divided. A parent who will be caring for children the majority of the time may receive a larger share of assets to ensure that they can accommodate their children’s needs.

• Contributions each spouse made to the marriage: There are a variety of contributions that a spouse may have made that may need to be considered. These may include both financial contributions related to income earned and non-financial contributions such as raising children or performing household work. A spouse who sacrificed career opportunities to support the other's professional growth may receive a more substantial share of marital property.

Contact Our DuPage County Property Division Lawyers

At [Farooqi & Husain Law Office, our Oakbrook Terrace asset division attorneys provide skilled representation in divorce and family law cases. We have years of experience helping spouses address complex issues related to property division, and our team understands what it takes to protect our clients' rights. If you have questions or concerns about how you can protect your financial interests as you work to negotiate a property settlement, we can provide the legal help you need. We will advocate for your interests and help ensure that you will have the financial resources you need going forward. Contact our office today at 630-909-9114 to set up a consultation.

Source: https://www.ilga.gov/legislation/ilcs/documents/075000050k503.htm