When it comes to the division of marital property, Illinois is an “equitable property” distribution state, meaning a marital estate is divided equitably by a court. Equitable distribution isn’t always equal down the middle, but relative to each situation.
While some states divide property 50/50, a judge In Illinois will consider many factors when dividing a marital estate. Firm guidelines don’t exist per se, so instead, each case is handled individually based on its own set of circumstances and the court has the discretion to decide what’s fair.
The court divides assets that are determined to be “marital property”, which is typically anything acquired during a marriage, regardless of which spouse owns the property or whose name might be on the title. What’s not considered in the division of property is “non-marital property” which includes:
- Possessions acquired outside of the marriage (prior to or after a legal separation)
- Assets excluded by a prenuptial agreement
- Property acquired by gift or legacy
All other property is considered martial property–the house, cars, all income, 401k plans, pensions, insurance and even debt.
Factors to be considered
“Equitable property” division is about making a fair decision for a divorcing couple, not a perfectly equal one. A judge will consider many factors when deciding how to divide a couple’s assets:
- The role each spouse played in obtaining the property
- Age, occupation and health of each spouse
- Length of the marriage
- Value of the property
- Standard of living established during the marriage
- Custodial arrangements for children
- Economic circumstances of each spouse, including the potential for future income
- Any prior arrangements from previous marriages (such as child or spousal support)
- Any tax repercussions attached to an asset
The goal of the court is to make a decision that’s fair, but the process of dividing marital property can be complex, especially if there are significant assets. With the help of legal counsel, it’s possible for a divorcing couple to come to an agreement outside of court to avoid a judicial division, but it’s best to consult with an attorney who can provide advice and help you make informed decisions.