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:
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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.
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. To learn more about how property is divided in divorce, see Illinois Property FAQs.
The couple must also assign all debt accrued during the marriage, including mortgages, car loans and credit card debts, to one of the spouses.
If you have questions about dividing property in your divorce, you should contact an experienced family law attorney in your area.