States follow one of two approaches to dividing property—a community property or equitable distribution approach. Illinois, like the majority of states, requires a division that is equitable, or fair, but that doesn’t necessarily mean equal.
Rather than using an automatic 50/50 split, an Illinois judge will consider all relevant factors in deciding what kind of property division is fair, including the following:
Some couples are able to agree on how to divide everything on their own, while others seek the assistance of attorneys or a mediator to help negotiate a settlement. Couples who can't resolve property issues outside of court will end up going to trial and a judge will ultimately decide all property issues in their divorce. See 750 Ill. Comp. Stat. § 5/502 (2020).
There’s no hard and fast rule for who gets the house in an Illinois divorce. In cases where a couple can’t afford to keep the marital home, a judge will order the house to be listed and sold as soon as possible so that the couple could divide the proceeds.
In other situations, such as to keep kids in a stable home environment, a judge may award the home to the custodial parent (parent who primarily lives with the children). This doesn’t mean that the noncustodial parent gets nothing. In cases where one spouse is awarded the marital home, a judge will typically award a buyout of the other spouse’s share of equity in the marital home.
The first step in dividing property during 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.
A spouse’s separate property 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.
Below are some common categories of separate property:
Marital property is any property that was acquired by either spouse during the marriage, using marital funds. Spouses can convert separate property into marital property (or vice versa) using a written agreement. Spouses can specify whether certain property is separate or marital in a written agreement either before or during marriage, using a prenup or postnup agreement.
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, while others do so without really considering the consequences. For example, a premarital bank account belonging to one spouse can become marital property if the other spouse makes deposits of marital income to it during the marriage.
Similarly, a house owned by one spouse alone before the marriage 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.
After determining which property is marital property, the couple, or the court, will assign a monetary value to each item. Determining an item’s value can help couples or a judge determine whether a specific property distribution is fair and equitable.
Specifically, a spouse with more assets and a successful career may have to take on most of the couple’s debts in a divorce, while the lower-earning spouse might receive a greater share of the assets. A couple who needs help determining values of assets 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.
Couples can divide their assets and debts on their own by reaching a divorce settlement agreement. A settlement agreement should resolve all issues in your divorce. A judge will review any proposed settlement agreement and must approve it before your divorce can become final. A judge won’t approve a settlement agreement that is obviously one-sided or patently unfair to one spouse. See 750 Ill. Comp. Stat. § 5/502 (2020).
If you have questions, speak to a local family aw attorney for advice.