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

Updated on
October 28, 2019
Article written by
Attorney Kevin O'Flaherty

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 Types of Property Can Be Divided in a Divorce?

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
  • 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

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.

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

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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