Getting divorced in Illinois will always come with a number of critical and complex issues that need to be addressed — including the division and distribution of assets and debts.
Let’s dive into some of the key things Illinois residents need to know about how assets are divided during a divorce:
What Assets Are Included In a Divorce Proceeding?
It is critical to understand that Illinois statutes treat marital and non-marital property differently during a divorce. In short: All marital property is eligible to be divided during divorce, while the court assigns each spouse’s non-marital property to that spouse.
In broad terms, marital property refers to all assets and liabilities acquired during a marriage, a significant category that might encompass real estate; vehicles; personal property; and investment, insurance, and retirement accounts. Non-marital property is that which belongs solely to one partner, and is generally purchased before the marriage and remains solely in one owner’s name. Non-marital property may also be acquired by gift, legacy, or descent, or may be property that is excluded due to a valid written agreement, such as a prenuptial or postnuptial agreement. Often, the distinction between non-marital property and marital property can become blurry, due to issues like commingling and transmutation of assets.
For a more in-depth examination of this important concept, please visit our guide: “What Is Considered Marital Property In Illinois?”
Will the Court Always Be Responsible for Determining the Division of Assets?
While many people fear that dissolving a marriage will necessarily result in a protracted battle in front of a judge, the reality is that the majority of divorce cases here in Illinois and around the country do not go to trial. Instead, most divorces that are contested — meaning that the parties have disagreements over one or more issues, including the division of marital assets and debts — are generally resolved through a settlement, typically after negotiations or mediation conducted with the oversight and assistance of a knowledgeable family law attorney. This means that the couple may come up with an agreeable plan on their own terms, without litigating the matter in front of the court. Similarly, a prenuptial or postnuptial agreement can help streamline, simplify, and minimize the financial burdens of the divorce process by making some key determinations about how many assets and debts are to be divided ahead of time, including the marital residence, business operations, property, and more.
Even when division of assets is handled through negotiation or settlement, however, it’s important to remember that divorce is still a legal process, which means that both parties must meet certain legal requirements — including complying with all filing deadlines, exchanging discovery, and appearing before the court for a “prove-up” to finalize the process.
How Are Assets Divided In an Illinois Divorce?
Broadly speaking, states tend to fall into two categories when it comes to asset division during divorce: There are community property states, which require an equal (or 50/50) division of marital assets, and there are equitable distribution states, which seek to divide assets in a way that is just and fair to both parties, but not necessarily equal. Illinois is an equitable distribution state, with the Illinois Marriage and Dissolution of Marriage Act specifying that marital assets are meant to be divided “in just proportions considering all relevant factors” — that is, distributed fairly and equitably based on the amount and types of property, and the personal circumstances of the divorcing spouses and their dependents.
Importantly, “marital misconduct” is not a factor that affects the division of assets. When deciding how to fairly allocate assets and debts, the court will, however, consider a variety of other factors, such as:
- Each party’s contribution to the acquisition, preservation, or increase or decrease in value of the property. This might include, for example, any decrease attributable to an advance from the parties’ marital estate; the contribution of a spouse as a homemaker or a caretaker for the family unit; or whether the contribution occurs after the commencement of a proceeding for dissolution of marriage or declaration of invalidity of marriage.
- The dissipation by each party of marital property. Dissipation refers to squandering or hiding assets, and claims of dissipation are subject to a number of important conditions under Illinois law.
- The value of the property assigned to each spouse.
- The duration of the marriage.
- The relevant economic circumstances of each spouse when the division of property is to become effective. Notably, this includes the awarding of the family home, or the right to live therein for reasonable periods, to the spouse having the primary residence of the children.
- Any obligations and rights arising from a prior marriage of either party. For example, this might include maintenance owed to a former spouse, or child support payments.
- Any prenuptial or postnuptial agreement of the parties. As we briefly touched on earlier, a prenup or postnup can allow a couple to determine how property, debts, and financial assets will be divided in the event of a divorce.
- The age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties.
- The custodial provisions for any children. This includes child support, as well as the allocation of parenting time and parental responsibilities. Importantly, if the court deems it necessary to protect and promote the best interests of the children, it may set aside a portion of the jointly or separately held estates of the parties in a separate fund or trust for the support, maintenance, education, physical and mental health, and general welfare of any minor, dependent, or incompetent child.
- Whether the apportionment is in lieu of or in addition to maintenance. Maintenance, formerly known as alimony or spousal support, is money that one spouse must pay the other, on an ongoing basis, following a divorce. Broadly, the purpose of maintenance is to help an ex-spouse support themselves and live independently after the dissolution of their marriage. In Illinois, our maintenance statute is gender-neutral, meaning that both spouses, regardless of gender, can be awarded maintenance, depending on their circumstances.
- The reasonable opportunity of each spouse for future acquisition of capital assets and income.
- The tax consequences of the property division upon the respective economic circumstances of the parties.
The court may make and enforce just judgments by ordering a sale of marital property, with proceeds from the sale to be applied as determined by the court. In determining the value of assets or property to be divided, the court will employ a fair market value standard, with the date of valuation being the date of trial or another date as agreed by the parties or ordered by the court, within its discretion. The court may seek the advice of financial experts or other professionals, whether or not employed by the court on a regular basis. The advice given must be provided in writing and made available by the court to counsel, who may examine any financial professionals as witnesses. The court shall allocate the costs and fees of those professional personnel between the parties based upon the financial ability of each party and any other criteria the court considers appropriate.
Do You Have Any More Questions About Divorce or Family Law?
Coming to an agreement on your own about how property is divided during a divorce can be confusing and exhausting, even under the best of circumstances. Here in Illinois, there are many details and conditions in family law that can be difficult to fully understand. Fortunately, you don’t have to go through this stressful transition alone.
At The Law Offices of J. Jeltes, Ltd., we make it our mission to ensure that our clients understand the divorce process at each and every step of the way, including the division of assets and debts.
Our attorneys and staff are skilled in handling legal matters in some of life’s most challenging family transitions, including divorce and the many considerations that go along with it. Our legal professionals are driven, attentive, and dedicated to achieving the best results possible. We truly understand that every situation is unique, and before hiring our firm our attorneys will provide you with a comprehensive one-on-one consultation to discuss your legal concerns and goals.
If you have any more questions about any aspect of divorce in Illinois, don’t hesitate to reach out to our team of experienced and compassionate advocates to continue the conversation.