An Overview of Property Division in Illinois

Wheaton Divorce Lawyers

Aside from the emotional consequences of divorce, the financial and personal effects may be difficult to cope with as well. When you decide to get divorced, you face the forfeiture of some of your hard-earned assets or other property you may have obtained in the course of the marriage. Understanding how property division works and how to best protect what is yours is critical going into divorce negotiations, and working with an experienced divorce and property division attorney can help ease the process and improve the chances of an amicable resolution of division of property.

Marital Versus Non-Marital Property

There are two components to this: first, we are talking about property. Property, in this context, includes both tangible and intangible property. Tangible property may include things like cash, books, cars, other objects, and real property. Intangible property may include equity in a home or vehicle, stocks/bonds, income, pensions, savings, or other monetary-based accounts. Second, there is both marital and non-marital property. Marital property is any property that was obtained during the course of the marriage even if it was only issued in one party’s name. Non-marital property is anything that was brought into marriage by the respective parties, or things that fall into one of the few exceptions to property obtained during the course of the marriage.

Marital property can be anything that is issued to one of the parties while the couple is married. This may include property that is deeded to only one spouse, vehicles with only one spouse’s name on the title, income earned by only one spouse, accounts with one of the spouses’ names on it, etc. Marital property extends to savings in the form of retirement accounts, pensions, and other work-related accounts where money is accumulated over time. There is a legal presumption that property obtained during the marriage is marital property.

Division of Marital Property

The actual division of property requires only that the division is equitable; equitable does not necessarily mean equal. The Illinois Marriage and Dissolution of Marriage Act enumerates the things that should be taken into consideration when dividing marital property. First, the court will separate out marital and non-marital property. There may be contests over this, as sometimes couples may “commingle” marital and non-marital property (for example, if one spouse receives an inheritance that is considered by law non-marital property, but it is deposited into an account that is considered non-marital property).

After any such disputes are resolved, the court will consider the following:

  • The duration of the marriage;
  • The contribution each spouse made to the accumulation of property in the marriage;
  • Prior rights and obligations of either party (prior child support payments, any large settlements received, etc.);
  • Any post/pre-nuptial agreements between the parties;
  • Tax consequences of property division;
  • Whether the property division is in addition to or in lieu of spousal maintenance payments; and
  • Each spouse’s access to income, employment, employability, future expenses, or any special anticipated medical, educational, or vocational expenses.

The court may also consider anything else it deems relevant in making its property division assessment. If certain things cannot be agreed upon (such as who should get the marital home), certain actions may need to be taken, such as selling the marital home and dividing the proceeds, or selling other personal property that cannot be amicably divided between the parties.

One often overlooked aspect of property division is debt. Debt is considered a part of the property division to the extent that it is typically immaterial which spouse took on the debt during the course of the marriage, save some exceptions such as student loans. The court must also divide debts among the parties in addition to marital property obtained during the course of the marriage. This may be paid off as part of the divorce settlement, or distributed among the parties and the burden placed on each individually. The court will utilize the same considerations for dividing debts as it did for dividing marital property.

Illinois Property Division Lawyers

Understanding what you are entitled to keep as well as what you deserve upon divorce is critical to a fair divorce settlement. At Abear Law Offices, our team of experienced Illinois property division attorneys knows how to prioritize your needs and ensure you receive what is rightfully yours upon divorce. Attorneys at any of our five convenient Chicagoland locations (Wheaton, St. Charles, Naperville, Warrenville, and Chicago) are always available to meet with you to learn more about your needs and to answer any questions you have about your divorce. Though post-divorce decree modifications are possible, it is best to make sure everything is done correctly the first time. Whether you are considering divorce, in the middle of settlement negotiations, or have concerns about a finalized decree, we can help. Call us today at (630) 904-3033 and take the first step toward your financial independence post-divorce.

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