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Kevin O'Flaherty

The division of property in a divorce is a crucial component of the outcome of the divorce process yet can be filled with intricacies at times depending on the assets and debts of each divorcing spouse. Compromises may need to be made on both ends, but what assets are protected in a divorce? And what debts become your responsibility once you split from your spouse? An experienced Illinois divorce attorney will be able to help you navigate what property is marital and non-marital to ensure the appropriate equitable distribution is met in your divorce case.  


Will My Wife Take Everything in the Divorce in Illinois?  


Illinois does not require a 50-50 split in a divorce regarding marital property. Instead, marital assets are divided using the principles of equitable distribution. Before getting the court involved, you can try and divide marital property on your own through mediation. When parties can't agree on property division, the court will use equitable distribution.  


Factors of Property Division  


There are many factors the court takes into consideration when deciding how to divide marital property. Here are 12 factors the court uses when dividing property in Illinois:  

  • Contribution by each party  
  • Dissipation by each party  
  • Value of Property Assigned  
  • Length of Marriage  
  • Economic Circumstance  
  • Prior Marriages  
  • Prenuptial and postnuptial agreements  
  • Situational Statuses (each party's age, health, occupation, employability, etc.)  
  • Parental Responsibilities and Custody  
  • Maintenance  
  • Earning Potential  
  • Taxes  


A 50-50 split may be possible if the contribution and earning capacities are equal for each divorcing spouse. However, this is not always the case, and divorcing spouses should not assume that an equal split is warranted in all circumstances.  


Updates to Illinois Divorce 2023  


While there are no new laws for Illinois divorce as of 2023, a few critical changes went into effect on January 1st, 2022. The Illinois Marriage and Dissolution of Marriage act now allows for interim attorney's fees. This means that one party may request money from the other party to retain an attorney. Another notable change with the Illinois Marriage and Dissolution of Marriage Act is that one parent may now seek permission from the court to relocate their residence while a case is pending as long as it is in the child's best interest. Lastly, in cases where a minor is alleged to be abused, neglected, or dependent in Illinois counties with a population of less than three million, a Court Appointed Special Advocate or CASA is needed to advocate for the child's best interest.  


Splitting Assets & Debt in Illinois Divorce  


Debt is included in the considerations of marital property in Illinois. Debt taken on at some point throughout the divorce will be considered shared debt and split equitably between the divorcing spouses. Debt that was incurred before the marriage remains with the one spouse who's responsible for that debt. Things such as loans and credit cards in only one spouse's name will remain in personal debt. On the other hand, if the couple takes on car loans, mortgages, or credit card debt together, and can accrue marital debt.    


How Debt is Divided in Illinois Divorce  


As mentioned above, Illinois is an equitable distribution state. In addition to the property being distributed equitably by the court, so are the marital debts. Debt may be made balanced out and fair through the distribution of assets. Secured debts will often go with the assets that secure them. This means that the spouse that receives a specific asset will also be responsible for the debt that comes along with it. For example, whoever ends up with the family home would then be responsible for the mortgage on that house.  

suburban houses as marital property

Marital vs. Non-Marital Property  


Anything excluded from the property division process in an Illinois divorce is considered non-marital property. Non-marital property is the assets and debts that remain unchanged before the marriage. This can also include gifts from one spouse to another, property acquired after legal separation, and property excluded by agreements such as prenuptial. Having a prenuptial, maintaining separate accounts, placing assets in a trust, and keeping records of shared accounts can help protect your non-marital property in a divorce.  


Marital property is essentially the opposite of non-marital property; it is assets or debts newly acquired during the marriage, jointly or by one spouse, not a gift or inheritance from one spouse to another.  


How is Credit Card Debt Split in Divorce?  


The court will determine whether the credit card debt is marital or non-marital. If the credit card debt is marital, the court will determine how to split the debt between parties in several ways. Both spouses may be liable for the amount of debt regardless of who made the charges to the account. In some instances, the court may order one spouse to pay off all credit card debt, or it may order each spouse to pay a portion based on income and other factors.  


If divorcing spouses cannot work together to pay off credit card debt before the divorce is finalized, agreements can be made outside of court to help resolve debts. A couple may choose to divide their credit card debt through a property settlement agreement that outlines how the debt will be divided and gives an overview of how it will be paid off over time. For a more in-depth overview of credit card debt division in Illinois divorce, please read our article, Splitting Credit Card Debt.  


Spousal Liability in Illinois Divorce  


According to Illinois law 750 ILCS 65/6, neither spouse shall be liable for the debts of the other incurred before marriage and for the separate debts of each other.  

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.

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