Property Division


Property Division in an Illinois Divorce

Married couples acquire lots of things during the course of their marriage.  When a marriage ends all those things need to be divided fairly or equitably.  Equitably does not necessarily mean equally.  Dividing small appliances, furniture and clothing is typically straight forward.  Dividing the marital home, a family business, a professional practice, retirement accounts, pension benefits, or a vacation home is more complicated.  So how does a couple’s property get divided during a divorce?

Property division can be simple or complex depending on the extent and nature of a couple’s assets.  Illinois is a no-fault divorce state.  As such, the family law court judge cannot take fault into consideration when making an award of marital property to either spouse.  What follows is a discussion of the steps and considerations you and your family law attorney should consider as you create your ideal plan for dividing your marital property.

1. Make an Inventory of all your Property

The first step is to make a complete and comprehensive list of all assets belonging to the couple or either spouse individually.  This includes the marital home, vacation homes, bank accounts, brokerage accounts, boats, cars, retirement accounts, life insurance policies, commercial real estate, businesses, stocks, bonds, jewelry and collectibles, among other things.  If you don’t have access to this information, your attorney will use the discovery process to force your spouse to disclose it.

2. Determine Whether the Property is Marital or Non-Marital

Once a complete list of a couple’s assets is made, the next step is to categorize the property as marital or non-marital.  In Illinois, all property is presumed to be marital property unless fits with specific exceptions such as it was acquired by gift or inheritance or is excluded by a pre-marital agreement.

In some limited circumstances, non-marital property can be transmuted into marital property.  Non-marital property can lose its non-marital designation and become transmuted into marital property when it mixed up with (co-mingled with) marital property to such a degree that it is no longer traceable as non-marital property.  An experienced Illinois divorce lawyer can help you make these determinations.

3. Determine the Value of all Property

Once the proper designations are made (or you have gathered sufficient evidence to support your position), the next step is to determine the value of the property at issue.  Valuing property can get complex when assets like retirement accounts, medical practices, dental practices, chiropractic practices, closely held businesses or commercial real estate are at issue.  In such situations, your attorney will help you to find the appropriate expert to give an opinion regarding the value of the property.

4. Marital Property is Divided Equitably

In Illinois, the law requires a just or equitable distribution of the marital estate.  Many couples mistakenly believe that the law requires an even or fifty-fifty split of marital property, but this is simply untrue.  Illinois family law court judges have several factors they must consider when dividing property.  Some of the factors include: the contributions of each spouse, the value of the property, the duration of the marriage, the relevant economic circumstances of each spouse, the age, health and occupations of the spouses, and the amount and sources of income for each spouse.  Each of these factors (and more) needs to be considered to determine what makes a fair allocation of marital property.  An experienced Illinois family law lawyer can help you make such a determination.

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