How is Property Divided in an Illinois Divorce? | Asset Division in Divorce
Video by Attorney Kevin O'Flaherty
Article written by Illinois Attorney Kevin O'Flaherty
May 6, 2019
There are several issues courts consider when dividing marital property in the event of dissolution of a marriage.
What Types of Property Can Be Divided in a Divorce?
The first issue is to determine the types of property that will be divided. Property subject to division by the court includes, but is not limited to, homes, automobiles, furniture, bank accounts, retirement accounts, pensions, stocks, and business interests.
What is Considered Marital Property in Illinois?
The second important issue the court will deal with when dividing the martial estate is whether property is considered marital or non-marital. Marital property means all property acquired by either spouse subsequent to the marriage. The following is considered non-marital property:
Property acquired by gift, legacy, or descent
Property acquired in exchange for property acquired by gift, legacy, or descent;
Property acquired after judgment of legal separation
Property excluded by valid written agreement of the parties
Any judgment or property obtained by judgment awarded to one spouse from the other spouse
Property acquired before the marriage
Any increase in value of the above-listed property
Any income from the above-listed non-marital property, as long as the income is not attributable to the personal effort of a spouse.
How Do Illinois Courts Divide Property in a Divorce?
Most people are familiar with community property states, such as California, that divide the marital estate equally. Illinois is an equitable property state and, therefore, Illinois courts order a fair division of the property based on the following factors:
Contribution of each spouse to acquisition of property, including contribution of spouse as a homemaker
Value of the property
Duration of the marriage
Economic circumstances for each spouse
Custodial provisions for children
Age, health, occupation, and needs of each party
Any obligations or rights arising from prior marriage
Whether distribution of property is in lieu of or in addition to maintenance
Opportunity of each spouse for future income
Tax consequences of property division on each spouse
Although an equitable division of the marital estate is considered on a case-by-case basis, the court is prohibited from considering marital misconduct when dividing the marital estate. Property will be divided fairly without the court acknowledging the transgressions of either spouse.
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