Each state has its own laws governing how marital property is divided when couples divorce. Illinois law requires a division that is equitable, or fair, but not necessarily equal. Some couples are able to agree on how to divide everything on their own, while others seek the help of attorneys or a mediator to negotiate a settlement.
Couples who don’t manage to resolve property issues outside of court will end up going to court to ask for a decision from a judge, or, if they wish, an arbitrator. An Illinois judge will consider all relevant factors in deciding what kind of property division is fair, including the following:
- the effects of any prenuptial agreements
- the length of the marriage
- each spouse's age, health, and station in life
- whether a spouse is receiving maintenance (alimony)
- each spouse's occupation, vocational skills, and employability
- the value of property assigned to each spouse
- each spouse's liabilities and needs
- each spouse's opportunity for future acquisition of assets and income
- either spouse’s obligations from a prior marriage (such as child support for other children),
- contributions to the acquisition, preservation, or increased value of marital property, including contributions as a homemaker
- contributions to any decrease in value or waste of marital or separate property
- the economic circumstances of each spouse
- custodial arrangements for any children of the marriage
- the desirability of awarding the family home, or the right to live in it for a reasonable period of time, to the party who has physical custody of children the majority of the time, and
- any tax consequences of the property division.
Learn more about Child Custody in Illinois.
Marital Property and Separate Property
The first step in dividing property at a divorce is deciding whether property is marital or separate. Marital property includes most assets and debts a couple acquires during marriage. Property is separate if a spouse owned it before marriage or acquired it during marriage by gift or inheritance. Separate property also includes items purchased with or exchanged for other separate property, as well as income from separate property, unless a spouse’s personal efforts generated the income. Any increase in value of separate property during marriage is also separate property, but the other spouse may be entitled to reimbursement for any contribution to the increase.
Sometimes spouses can convert separate property into marital property, or vice versa. Spouses can specify whether certain property is separate or marital in a written agreement either before or during marriage. A spouse can also change separate property into marital property by changing title from individual to joint ownership, in which case a court would presume that the spouse intended to make a "gift" of the property to the marriage.
Marital and separate property can also be mixed together—sometimes called "commingling." Some couples combine their separate assets intentionally; others do so without really considering the consequences A premarital bank account belonging to one spouse can become marital property if the other spouse makes deposits to it; a house owned by one spouse alone can become marital property if both spouses pay the mortgage and other expenses. If the spouses aren’t able to decide what belongs to whom, the judge will have to decide whether any or all of the commingled property was a gift to the marriage or whether the original owner should be reimbursed in whole or in part. These situations can be very complicated and may require the assistance of an attorney.
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After determining which property is marital property, the couple, or the court, will assign a monetary value to each item. Couples who need help determining values can hire professional appraisers. Some financial assets, such as retirement accounts, can be very difficult to evaluate and may require the assistance of a financial professional, such as a C.P.A. or an actuary.
Dividing the Property
Spouses can divide assets by assigning certain items to each spouse, possibly with an equalizing payment if one spouse gets substantially more than the other, or by selling property and dividing the proceeds. They can also agree to continue to own property together--for example, they may decide to keep the family home until children are out of school, or to retain investment property in hopes it will increase in value. This won't work for couples who can't get along at all, but can have advantages for couples who are on relatively good terms with each other even after the divorce.
The couple must also assign all debt accrued during the marriage, including mortgages, car loans and credit card debts, to one of the spouses.