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Kevin O'Flaherty

In this article, we explain what factors are used to determine division of property in an Illinois divorce and answer the following questions:

  • How does each party’s contribution determine property division in an Illinois divorce?
  • How does marital versus non-marital property determine property division in a divorce?
  • How do taxes, current and future income and child rearing costs affect property division?
  • What other factors associated with the marriage affect the division of property in a divorce?
  • What happens if one party tries to hide or waste assets to influence property division?

Next to working out parental responsibility, division of marital property is easily the most stressful and complex aspect of the divorce process. Couples often don’t understand what constitutes marital versus non-marital property and how many factors go into calculating who gets what in a divorce. Having an experienced, professional divorce attorney representing you can make the difference between getting what you deserve in your divorce and getting the short end of the stick.

Illinois is a an equitable division state, meaning that unlike some other states where marital property is classified as “community property” and considered 50/50 regardless of which party purchased the item, who makes what money, etc, anything purchased during the marriage is “marital property” and divided during the divorce “according to equity.” This means that even though one party may have purchased a car during the marriage, and “made all the car payments with money from their job,” the car or the value of the car may go entirely to one spouse or the other. How marital property is divided in an Illinois divorce depends on a number of factors which this article breaks down below.

How Does Each Party’s Contribution Determine Property Division In a Divorce?

One party’s contribution during a marriage is not simply limited to how much money they bring to the home. When getting an idea of each party’s contribution, the court views the marriage like a joint enterprise; requiring a combination of financial input, financial output and work done to maintain and develop the family/business. So even though only one spouse in a marriage may earn wages, the other is still considered to be fulfilling a job that manages the house, rears the children, etc. Either side is considered on equal footing with the other. This also means that if there were no children in the marriage, or the attorney for one party can show that there was little if any work done by the other spouse to maintain the home and perform other normal homemaker duties then that spouse will likely receive very little compensation.

Sometimes parties involved in a divorce would rather spend extra money on their legal fees versus having that money go to their soon to be ex-spouse. The money spent during the divorce may be coming from what is still considered a combined “marital fund” (a joint checking account or something similar). However, those payments are deducted from the total amount that the spending party will receive when the divorce is finalized.This makes the “I’d rather spend it on the attorney’s” strategy moot.

How Does Marital Versus Non-Marital Property Affect Property Division In a Divorce?

What is or is not considered marital property can be a little confusing. Often, couples think that anything acquired during marriage is considered marital property, whether it be income earned, a purchased car, a house, a piece of jewelry, etc. However, there are some specific guidelines that determine what is and is not marital property. Non-marital property is anything that is:

  • Acquired before the marriage and continues to remain in the original owners name during the marriage. This means that if one party purchased a house or car prior to marriage and then later refinanced the loan to include the spouse, or retitled an asset and included the spouse under the new title it becomes marital property.
  • A gift. A gift remains non-marital property, even when given by one spouse to another. This is often a point of serious debate during divorce negotiations, with both sides arguing that an item or something else should be considered a gift, whether true or not.
  • Inheritance before or during the marriage. If one spouse inherits a sum of money from a dead relative and keeps that money in a separate checking account it should legally be untouchable during a divorce. However, if that money is placed into a jointly held checking account it would automatically become marital property and subject to property division during the divorce. 

As one can imagine the more assets involved in a marriage, especially if one or both parties owned a business or were high level executives, the more complex and time consuming division of property becomes.

How Do Taxes, Current and Future Income, and Child Rearing Costs Affect Property Division?

The judge handling a divorce will need to consider the financial situation for both parties involved in a divorce, with each parties’ future earning potential being key. It’s common for one spouse to have put their career on hold in order to take on a more involved role with the children and household, and if it’s not possible for that parent to go back to work immediately, or his or her income potential has been greatly impacted by taking time off that will factor considerably into the property division calculations.

It’s important that your divorce attorney also be well versed in the potential tax consequences when considering how to divide up certain assets. Although it may seem appealing for one spouse to receive a considerable amount of value through stock or other investments in lieu of a lesser amount of cash, the tax burden of converting those assets into cash can greatly outweigh the lesser cash award. 

What Other Factors Associated With The Marriage Affect The Division Of Property In A Divorce?

Behavior prior to the divorce: First off, it’s important to understand that whatever ultimately caused the divorce will have little to no bearing on how the married couple’s property, debts, and assets are divided during the divorce. Whether one spouse cheated on the other, was purported to be verbally abusive, etc, won’t have much impact on how the judge decides to allocate assets, unless the behavior significantly impacted the other spouse in a financial way. This is another point that is often heavily argued during a divorce.

Situational status: The court will also need to consider each person’s “situational status,” including their age, health, occupational hazards liabilities, vocational skills and the needs of each party.

Parental Responsibility: Parental responsibility is a large factor when determining property division. The judge will look at the costs of rearing the children, where the children have lived for a majority of their lives, if there are any special circumstances involved with raising the children, and the cost of relocation if necessary. 

Prenuptials and agreements: If one or both spouses had a prior marriage end in divorce and now receives some form of maintenance, child support, or other financial agreement, the judge must take this into account. Agreements signed between the married couple prior to divorce can also have a significant impact when determining division of property. The well known prenuptial agreement is one common example of a contract stipulating breakdown of certain property and assets if a divorce occurs, whether for specific reasons or not. 

Maintenance: Maintenance is a monetary award given by the court only if property division could not achieve financial equity between the parties. It is usually a recurring payment set of a specific period of time. More and more divorce courts try to avoid award maintenance because it is difficult to enforce consistent, timely payment by the responsible party. Also, post divorce events may lead to one seeking modification, suspension or termination of the maintenance payments . This often leads to the parties back in court, fighting over money and assets. Instead, the court will award a larger property division to one party in order to bring finality to the divorce and limit the chance for something to go wrong.

Duration of the marriage: Whether a marriage lasted 45 months or 45 years has a substantial impact on property division in a divorce. The longer a marriage the greater the multiplier of the homemaker’s contribution. Conversely, if a couple is married for a few months neither should expect to get much from the other in a divorce. This helps to prevent questionable individuals from seeking to profit from marrying a wealthy individual only to divorce them shortly thereafter.

What Happens If One Party Tries to Hide or Waste Assets To Influence Property Division?

Wasting or hiding assets in a divorce is known as dissipation. Illinois has a system in place to identify and deal with issues of dissipation in divorce proceedings. If there is evidence to suspect dissipation by one or both parties in a divorce the attorney should file a formal notice of dissipation claim. The guidelines for a dissipation claim in Illinois are as follows:

  • The dissipation claim must be filed at least 60 days before trial or 30 days after discovery closes, whichever is later. 
  • The notice must include the date range during which the marriage was dissolving;
  • The notice must identify what marital property is alleged to have been dissipated;
  • The notice must include the date range during which the dissipation occurred;
  • A certificate of service must also be filed with the court clerk.
  • The statute of limitations on dissipation claims in Illinois is 5 years, but a 3 year “you-should-have-known-this-was-happening” clause exists to further limit certain claims.

Divorce proceedings contain many moving parts. They can become expensive, time consuming and, at times, soul crushing, especially if a child custody battle erupts. The single most important influencer in a divorce case is the competency of your attorney. If you’re considering divorce or have questions about divorce don’t hesitate to give us a call at 630-324-6666. 

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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