Divorce and Property Division in Illinois

The decision to divorce is a difficult one, and conversations focused on division of property can often be the most contentious. Emotions can easily tangle with finances when attempting to have discussions regarding who can keep the family home and how savings that were carefully set aside are split.

Preparing for these conversations with a basic understanding of state law can ease the confusion associated with who gets what.

State Law: Marital v. Nonmarital Property

Illinois law views property as either marital or nonmarital. Marital property is split during the divorce, and nonmarital property remains solely with the party who owns it. Generally, property that is acquired during the marriage is considered marital property. However, there are some exceptions. Some common exceptions include:

  • Any property that is given as a gift or inheritance
  • Property acquired in exchange for premarital property
  • Property excluded in a prenuptial or other agreement

Although an inheritance is seen as separate property, confusion often results when it is intermingled with marital property in a joint account. In such cases the court may presume the property was intended to be used as marital. The easiest way to avoid confusion is to keep inheritance and other nonmarital property in a separate account.

It is also wise to begin an individual account at the time of separation. State law requires a two-year period of separation before granting a divorce. Keeping income earned during this period in a separate account can ease the court's determination that such earnings are nonmarital in nature.

Deferred compensation can also be considered an exception to the marital property rules. Deferred compensation refers to stock options, pensions and retirement benefits that are promised at an early point in one's career but not actually granted until a later date. If the work required to receive these benefits was completed prior to the marriage, the benefits are often considered nonmarital property.

Factors Considered in Division of Marital Property

Once property is categorized as either marital or nonmarital, Illinois law states that the rules of equitable division govern. Essentially, the court attempts to divide all marital property without regard to marital misconduct. This is required by state law, as the Illinois Marriage and Dissolution of Marriage Act specifically notes that fault not be considered in decisions of property distribution.

However, there is an exception. When considering the contribution of each spouse to marital property, the court may take marital misconduct into consideration. This can occur if one party's infidelity or other form of misconduct led to a dissipation of the marital property. Common examples include gambling, excessive travel or excessive use of credit cards. The court will review any use of marital property in a manner that is unrelated to the marriage at a time when the union is undergoing an "irreconcilable breakdown" to make this determination.

An accused party can fight this accusation by defending the use of funds. If able to prove the money was used for a marital purpose, the court will not consider dissipation charges. If, however, the spouse cannot defend against these allegations and the charge is found to be accurate, the court will favor the innocent spouse when dividing the remaining property.

There are many additional factors the court considers when attempting to equitably divide marital property, including:

  • Value of nonmarital property assigned to each party
  • Length of marriage
  • Any economic circumstances that the court finds relevant
  • Presence and terms of a premarital agreement
  • Age, health, occupation, employability and needs of each party
  • Custody of children

A court may also favor the party who retains custody of the children when awarding the family home.

It is important to note that equitable division does not necessarily mean even. Instead the court is looking to ensure that the property is divided in a "just" matter. As a result, an economically disadvantaged spouse may receive a greater share of the property.

This can be the case in situations where one spouse assumed the role of homemaker and raised the children while the other pursued a lucrative career. This is particularly true if the divorce occurs after a long marriage and finds it unlikely that the disadvantaged spouse will find employment in the future.

Navigating the intricate laws of divorce and best presenting your circumstances to ensure equitable distribution of property can be difficult. Every situation is unique, and it is wise to seek the counsel of an experienced division of marital assets lawyer to better ensure that your rights are protected.

  • Illinois State Bar Association
  • Northwest Suburban Bar Association

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