Divorce is usually a complex and stressful process, even when divorcing spouses agree about most aspects of the process. Many factors can complicate divorce proceedings, from bitterly contested child custody issues to disagreements about alimony or spousal support. One of the most contentious factors in most divorce cases is property division.

It’s crucial for anyone preparing for divorce to understand the most important facets of the dissolution process, including the division of marital property. Every state has different laws regarding property division in divorce, and Illinois upholds an equitable distribution law.

What Is Equitable Distribution?

As the name suggests, the equitable distribution law for divorce upheld in Illinois aims to divide a divorcing couple’s marital property as equitably as possible. The court generally strives for the fairest possible property division, but this does not necessarily mean any given property division determination will be entirely equal. While many people operate under the assumption that divorce inherently means parting with half of your assets, this is not necessarily true depending on the nature of your divorce and the number of assets you and your spouse control.

Some states uphold community property laws that require a strict 50/50 division of marital assets in a divorce. The equitable distribution law of Illinois and many other states instead aims for a reasonable and logical division of property, aiming for the most equitable possible result. Depending on how a divorcing couple decides to handle their divorce, they can negotiate property division under Illinois’ equitable distribution law, or they may need the court to intervene in the decision.

Defining Separate and Marital Property in an Equitable Distribution State

The property division process in divorce has many phases. Typically, the process begins with each spouse presenting their financial disclosure statements in divorce proceedings. Each spouse must provide evidence of separate ownership if they intend to claim specific assets in equitable distribution proceedings. In an equitable distribution state such as Illinois, each spouse has the right to retain ownership of separate property while all of their shared marital property is subject to division.

Separate property generally includes any assets an individual owned before marrying. For example, if one spouse owned a home before marrying, they would likely keep the home following a divorce. Separate property can also include gifts, inheritance from blood relatives, and family heirlooms. If you own separate property, it’s vital to gather the documentation you need to establish your separate property ownership rights over these assets to protect them from division in your divorce proceedings.

It’s important to remember that some separate property can effectively transmute into marital property under certain conditions. For example, if you owned a home worth $100,000 before marrying and your spouse contributed to renovations during your marriage that increased the property value to $200,000, the court would likely consider the home marital property due to the appreciated value generated by your spouse’s contribution.

Marital property in Illinois includes all assets gained by either spouse during the marriage. This may include the income earned by both spouses, assets purchased during their marriage, and real property.

How Does Illinois Divide Marital Property?

The equitable distribution process is more complex than many divorcing couples may realize. The Illinois Marriage and Dissolution of Marriage Act requires a family court judge to examine multiple factors in determining the most equitable possible distribution of a divorcing couple’s marital property:

  • If the couple has a valid prenuptial/postnuptial agreement in place, the court will examine this contract and enforce it to the extent allowed under Illinois law.
  • Divorcing parents’ child custody rights and child support obligations are major influencing factors in any divorce case.
  • The court must consider the length of the marriage to assess many different aspects of the property division, such as each spouse’s income contributions to the marriage.
  • Spouses who made non-financial contributions to the marriage, such as providing childcare as a stay-at-home parent, should expect the court to acknowledge these contributions and their financial impact.
  • The court must also examine the tax implications of equitable distribution in assigning ownership of divided marital assets.
  • A judge will consider each spouse’s age, overall health, and employability or ability to earn income when making equitable distribution determinations.
  • If either spouse claims fraud or dissipation of marital assets, the court will closely examine these claims.

This is not an exhaustive list of the various metrics a judge will consider when a couple litigates their divorce under Illinois’ equitable distribution laws. This process is strenuous, time-consuming, and ultimately expensive for both spouses. It’s possible to avoid many of the issues caused by divorce litigation by exploring alternative dispute resolution like mediation. If you and your spouse are willing to negotiate privately, it’s possible to reach a more personalized resolution to the property division. If you are interested in divorce mediation, contact an experienced Illinois divorce mediation attorney as soon as possible to learn more about the process.