Division of property is an essential part of any divorce, where a couple’s marital assets are split between them. This includes assets such as a shared home, vehicles, shared bank accounts, retirement accounts, real estate, and high-value assets like jewelry and art. It also includes any marital debts. Property division can frequently become contentious, especially if each spouse has financial or emotional interests in certain assets, so a Chicago property division lawyer is key.
In Illinois, if the court decides the division of property, a couple’s assets are divided according to equitable distribution laws. The court reviews significant factors in the marriage to decide what a fair split of assets is. This may mean that one spouse receives a higher amount of marital assets if the court decides it is fair. It’s important to understand this process as you enter into a divorce. A knowledgeable divorce attorney in Chicago can help you successfully navigate property division.
Understanding Equitable Distribution in Chicago
Equitable distribution laws do not always apply to the division of assets and debts. Spouses who get a divorce outside of court are not required to follow equitable distribution. Couples may use divorce mediation or collaborative divorce to negotiate the terms of a separation agreement outside of court. Once an agreement is made, it is submitted to the court for approval. The court will determine that:
- Division of property and spousal support determinations are fair and reasonable for each spouse and are not illegal or unconscionable
- Child custody and child support decisions are in the child’s interests
If these things are true, the court will approve the separation agreement and enter it as a court order.
If spouses can’t reach an agreement, they must go to the court to decide the terms of their separation agreement. The court divides property based on certain factors.
How Does the Court Determine What Is Equitable?
When the court divides marital assets, it may end up being equal, but it does not have to be. When determining what is fair, the court reviews the following factors:
- Each spouse’s contributions to the marriage, including financial contributions and contributions such as caring for the marital home, managing bills, or raising children.
- Dissipation of assets by either spouse, which means if either spouse spent and wasted marital assets to hurt the other spouse financially. It also refers to when one spouse hides assets from their spouse.
- The duration of the couple’s marriage. In a longer marriage, spouses typically have more marital assets and fewer separate assets.
- Each spouse’s age, health, disability, and unique financial or medical needs.
- The existence of any prenuptial or postnuptial agreements that divide some or all property.
- Prior marriages and divorce orders of either spouse, including whether a spouse pays or receives child support or spousal maintenance.
- Each spouse’s income, job position, employability, skills, education, professional credentials, and how this impacts their future earning capacity. Each spouse’s income and earning capacity impacts their ability to maintain the standard of living they were used to in the marriage.
- Tax implications of the division of assets for each spouse.
- Each spouse’s financial status and how that impacts their custody rights and responsibility to child support.
- The financial needs of the couple’s children. The custodial parents need the financial ability to provide care for children, and this may impact the division of assets in addition to requiring child support.
- Whether either party will be receiving spousal maintenance from the other instead of a certain number of marital assets.
- Each spouse’s separate property value.
FAQs
Q: Who Gets the House in Divorce in Illinois?
A: In most divorces, a home is marital property, meaning it must be divided between spouses along with other assets. Spouses have several options for dividing the house and have more control over this decision if they create a separation agreement outside of court. Spouses may:
- Sell the home and split the profits
- One spouse buys out the other with marital assets equal to the home
- Spouses co-own the home
If spouses have children, the parent with primary custody or more time with the children is likely to keep the home. The court assumes that this stability is in the children’s interests.
Q: What Is Considered Non-Marital Property in Illinois?
A: Non-marital property in Illinois generally refers to any property that an individual owned prior to their marriage or after their date of separation. There are some exceptions. If one spouse receives a gift or inheritance during the marriage, this is considered non-marital property. Additionally, there are ways that non-marital assets can become marital assets through commingling or transmutation.
Non-marital property is not divided in a divorce. However, information about non-marital property is important because it is a deciding factor in an equitable split of marital assets. The court assumes that assets obtained during a marriage are marital assets unless one spouse proves otherwise.
Q: How Long Do You Have to Be Married to Get Half of Everything in Illinois?
A: There is no specific amount of time a couple must be married to get half of all assets in Illinois. The length of marriage is a deciding factor if the court decides on property division, but only to determine what a fair split of marital assets is.
If a couple has had a long marriage and one spouse has significantly greater wealth than the other spouse, the court may decide it is fair that the lesser-earning spouse receives more marital assets. However, what is a fair split of assets will be unique to each couple and their divorce, and many factors may impact the outcome.
Q: What Is a Wife Entitled to in a Divorce in Illinois?
A: Each spouse, regardless of their gender, is entitled to a fair portion of marital assets. The court will review factors about a couple’s marriage, such as:
- Their age and health, their income
- Their individual contributions to marital property
- Their obligations to prior marriages
- The dissipation or wasting of marital assets
Based on these factors, the court will determine what is a fair split of marital assets. If spouses do not want to be subject to equitable distribution laws, they can mediate a separation agreement outside of court. Spouses who get divorced with a valid marital agreement are also exempt.
Protect Your Interests During a Divorce
For many couples, it’s to their benefit to divide property outside of court, where they have more control. An experienced attorney can help you determine how to protect your rights to property. Contact Stange Law Firm today.
