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How is Property Divided in an Illinois Divorce? | Asset Division in Divorce

There are several issues courts consider when dividing marital property in the event of dissolution of a marriage.  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.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
  • Pre-nuptial agreement
  • 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
  • Any dissipation

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.

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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Kevin O'Flaherty

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