How do Assets Get Divided in a Divorce in Illinois?

Updated on 08/23/2021 / Under

Some states are community property States. In this state, marital property is split 50/50 despite the circumstances. Illinois is an equitable distribution state. The property will be divided 30/70 or in another ratio depending on a variety of factors. The property will rarely be split 50/50 in Illinois. Illinois courts decide on what equitable distribution is, which will depend on each individual case. 

If you are getting divorced in Illinois, you may be wondering, how do assets get divided in a divorce in Illinois? Couples can divide property on their own, but when they cannot reach a conclusion, they may require the court’s intervention. The property division process can become highly complicated when couples have to divide the high net worth and complex assets.

It may seem unfair when one spouse is awarded less. However, the Illinois courts have the intention of carrying out the division of property in a just and fair manner. Illinois is a no-fault divorce state. This means that if there is an incidence of marital misconduct, it will not affect how property will be divided. Marital assets will not be awarded more to the aggrieved party or the wronged party.

Even as this is the case, the court does recognize financial misconduct, and it will affect how property will be divided. Suppose the cheating spouse spends family assets in a wasteful manner to pay for gifts and expensive holidays. In that case, the court will require that they pay it back to the other party. This is because the money was not used to benefit the family. For the property to be divided, the first step usually the classification of property. It will help in identifying marital property and non-marital assets.

Factors Considered By Illinois Courts during Division of Assets

Here are some of the factors listed in the Illinois marriage and dissolution of marriage act during the division of assets.

A Prenuptial or Postnuptial Agreement

A valid prenuptial agreement will play a big part in determining the division of marital property. However, it is essential to note that there are factors that will prompt a court to nullify a prenuptial agreement during a divorce proceeding.

A prenuptial agreement will be nullified:

  • One of the spouses was pressured or coerced into signing the document.
  • When a document has unconscionable provisions. Suppose there are unethical or exceptionally unfair provisions in a prenuptial agreement. In that case, there is a high likelihood that it will not be enforced in a court of law.
  • Suppose fraudulent and deceptive information about either party’s income, assets, or debts is contained in the document. In that case, the prenuptial document has a high chance of not being enforced.
  • If either or both of the spouses did not have the mental capacity required to sign the document. It can be due to alcohol, drugs, or another issue.
  • If the spouse who signed the documents did so without actually reading or understanding the terms, they agreed to. This can happen if a prenuptial agreement is presented to the spouse on the wedding day, and they are required to sign. They will not have enough time to understand the provisions that are in the agreement.
How do Assets Get Divided in a Divorce in Illinois?

Child Custody Provisions

The parent entrusted with the custody of the children will be favored when property is being divided. They can get the house since it is in the children's best interest to remain on familiar grounds after divorce for their stability.

Spousal Maintenance

If one party was a stay-at-home parent or relied on their partner, the court can award them alimony or spousal support.

The Length of the Marriage

The duration that the marriage lasted will determine how property will be divided. The longer the marriage lasted, the higher the spouses' chances of getting a more significant share of the marital property.

The Contribution, Each Spouse, Made Financially that Determines the Value of the Marital Property

The spouse that has contributed more in terms of finances will be awarded a more significant share.

Non-Financial Contributions Towards the Marital Estate

If while the other spouse was working, one of them had to lay aside their careers and take care of the children, it would be considered a contribution towards the marital property.

Other that will come into play are;

  • The health, age, financial circumstance, and employability of the spouse
  • The tax implication of the property being divided
  • Fraud claims made by either of the party’s in a divorce
  • Previous spousal maintains or child support obligations that either of the spouses has

The Difference Between Marital and Non-Marital Property

Separate property or nonmarital property is the property that has been bought with or exchanged with other separate property. Personal property can as well be purchased from the income of premarital property. However, if a spouse's personal efforts did generate the income, it makes a difference. Even if separate property does increase during a marriage, it will still be regarded as separate.

Suppose the other spouse contributed to the increase in value of the separate property. In that case, they might be entitled to reimbursement for the part they played.

Here are some of the categories of separate property:

  • Any property that has been acquired by one of the party’s as a gift, descent, or legacy
  • Assets owned by a spouse as a result of a judgment during a legal separation
  • Assets that have been excluded from the marital property as a result of a prenuptial agreement
  • Assets obtained by one party in exchange for property that the party acquired before they were married, as a gift, or descent
  • Assets that have been awarded to one spouse from the other spouse by judgment
  • Assets that have been obtained by either of the spouses before they got married

Marital property is any assets that have been acquired by either spouse during the marriage using marital funds. Separate property can be converted into marital property through a written agreement. Here is how separate property can become marital property.

Assets Get Divided in a Divorce
  • Property that is changed from individual to joint ownership is considered as joint property.
  • When a spouse makes deposits of the marital income to a premarital bank account that belongs to the other spouse within the period of marriage
  • If both spouses pay the mortgage for a house that previously belonged to one of the spouse’s it will become marital property.

Talking to a family law attorney will help you better understand how to differentiate between premarital assets and marital property.

The Process of Dividing Property in an Illinois Divorce

During the process of dividing property in Illinois, equitable distribution of property will only apply to marital property and not separate property.

Equitable division does not mean that the property will be divided equally. The couple can decide how they will distribute their property. However, if they bring the issue in front of a court, the court will consider several factors.

Marital debts will be fairly distributed during the process of marital division.

You must consider all of the properties that you own together before the divorce process is finalized. Finding out that you jointly own property with your spouse after a divorce is finalized can lead to complicated and contentious issues.

Unusual Properties That Can Be Divided During a Divorce in Chicago, Illinois

The marital property included assets, debts, or other obligations acquired by either party within the marriage. Unique divorce assets during a divorce can either be tangible or intangible. Tangible assets are those that you can see or touch, while intangible assets are the opposite.

Some of these unusual assets are:

  • Pets or other animals. Illinois laws state that ownership of pets will be based on their best interest.
  • Gifts given during the marriage.
  • Memorabilia or collections. These include books, antiques, or other things that are of value.

To get more information on the distribution of assets in a divorce in Illinois, you can contact a Chicago divorce lawyer at Ktenas Law and schedule an initial consultation. We’d be happy to hear from you!

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