It’s unfortunate, but sometimes it’s best if two married people each go their separate ways. Yet often that’s easier said than done—somehow the couple’s property needs to be divided between them so they can each move on. Illinois law provides rules directing how that property division happens.
What property gets divided?
Not all property is subject to division in a divorce. Illinois allows each partner to claim certain assets as “non-marital property” before the court considers how to divide the remaining non-marital property. Non-marital property includes items such as:
- Property acquired as a gift
- Some property that a partner owned before they were married
- Property excluded by an agreement (like a prenuptial agreement or “prenup”)
Everything else the couple owns, including debts, gets considered by the court for division between the partners.
What does the court consider when deciding how to divide up the property?
In Illinois, the law requires judges to consider “all relevant factors” when deciding how to divide the couple’s property in a fair and just way. Interestingly, “marital misconduct” is specifically excluded from those relevant factors. Instead, Illinois law requires judges to consider the following 12 factors when deciding how property will be divided:
- How much each partner contributed to earning, preserving, and/or losing the couple’s property
- Whether either partner spent or used a significant portion of the couple’s property on him- or herself while the marriage was breaking down
- How much property each partner will own after the divorce
- How long the partners were married
- Each partner’s economic situation at the time the property is divided, including the value of remaining in the family home if there are children
- The impact of any previous marriages on either partner’s assets or debts
- Whether the partners have made a prenuptial or postnuptial agreement regarding the distribution of property
- Each partner’s general circumstances, including their age, health, job and job skills, employability, needs, income, etc.
- Whether either partner will have custody of the couple’s children
- Whether either partner will be receiving spousal support payments
- Each partner’s ability to gain wealth in the future
- The tax implications of dividing the property for each partner
After considering those factors and anything else the court finds relevant, the judge has broad authority to divide the couple’s property in any way it finds just. That includes making creative arrangements, such as setting aside property for the couple’s children in a trust fund or other protective arrangement, or ordering a particular piece of property to be sold and the proceeds divided between the partners if it would be unfair to allow either partner to keep it.
Clearly judgments about how property will be divided during a divorce are complicated. That’s why it’s important to have the assistance of a qualified attorney when preparing to prove to the judge that your proposed division of the property is “just.”
Our firm specializes on Illinois divorce law and we are available to help you through your own divorce, so if you have questions about a divorce please contact an experienced Illinois divorce lawyer at the Goodman Law Firm to help you understand your options.
