When a marriage ends and a couple begins the divorce process, they will have to split their marital assets in a process called property division. This is often one of the areas of divorce that generate the most disputes, especially when a couple has a complex financial portfolio.
If you are thinking about getting divorced, you probably have questions about what will happen to your assets and how you can best protect your rights. Rest assured, our attorneys at Law Offices of Jonathan Merel, P.C. are here to answer all of your questions about property division.
Property Division Under Equitable Distribution
In the U.S., there are two systems of property division when it comes to divorce cases. Some states adhere to principles of “equitable distribution” while other states follow the “community property” system of asset distribution. Illinois follows the “equitable distribution” system.
Marital vs. Non-Marital Property
Under Illinois equitable distribution principles, all property acquired during marriage is “marital property” and must be divided equitably. Conversely, nonmarital property includes property that a party acquires during the marriage by gift, legacy, or descent, or property the parties agree to treat as non-marital property.
For example, consider someone who regularly acquires valuable collector’s items each month as a hobby and was married in August 2005. The collection up until August 2005 is not marital property. However, items in the collection that were acquired after the marriage in August 2005 are considered marital property.
Furthermore, imagine that our hypothetical spouse inherited a summer cabin in the mountains when their great uncle passed away. The summer cabin would qualify as that spouse’s nonmarital property.
Factors Under the Illinois Marriage and Marriage Dissolution Act
Property that qualifies as part of the marital estate is subject to equitable distribution upon divorce. “Equitable” distribution does not necessarily mean an equal division of the estate. The court must distribute assets included in the marital estate in a just and fair way.
Under Illinois law, courts are required to consider the following factors when determining what an “equitable” distribution of marital property is:
- Each party’s contributions to acquiring property
- Dissipation of the marital property by each party
- The value of the property
- The duration of the parties’ marriage
- The economic circumstances of the parties at the time property will be divided
- The obligations and rights of each party in connection with a previous marriage
- Any marital contracts the parties entered into
- The age, health, station, occupation, wealth, vocational ability, employability, estate, liabilities, and needs of the parties
- The custodial needs for any children
- If property division is conducted in place of or along with spousal support obligations
- Each party’s opportunity to acquire future assets and income
- The tax consequences of the proposed division for each party
You can leave property division up to a judge, but it’s recommended that couples come to this agreement on their own with their attorneys. This is often the quickest way to finalize a divorce and the best way to ensure that you obtain the property you wish to own.
Valuing and dividing your assets can be overwhelming on your own, but we’re committed to making things easier for you. Our experienced attorneys have been helping couples get a fair and favorable settlement since 2009.