When you’re considering divorce in Illinois, it’s important to understand how property division works. Divorce law can be complicated and contentious, and you should always discuss your situation with an experienced Wheaton divorce lawyer.
Equal vs. Equitable: Equitable Division of Property in Illinois
First thing’s first: under Illinois law, marital property is divided equitably. What is equitable distribution? In short, it’s a way of dividing property that’s intended to be fair to both parties, although it may not be equal.
According to an article in the Huffington Post, a state’s method of property division can make a huge different in the outcome of your divorce. As an equitable distribution state, Illinois is among the majority. In our state, courts will take into account the circumstances of a divorcing couple and attempt to divide the property in a manner that’s fair given those circumstances. Equitable distribution rules aren’t hard and fast, and judges can examine many different factors when making a determination about property division. Typically, Illinois judges may consider some of the following factors when dividing marital property:
- Duration of the marriage;
- Ability of each spouse to support himself or herself after divorce;
- Whether one spouse has given up career opportunities for the benefit of the other spouse or to raise the couple’s children;
- Age and health of the divorcing spouses; and
- Education and/or professional training of each spouse.
In other words, the judge will take into account many different factors in order to decide what a fair division of marital property will look like. How is this method different from other states? In a small number of states not including Illinois, courts apply a “community property” rule. In community property states, property division results in marital assets being divided equally—or, essentially, in half—rather than equitably.
What Constitutes Marital Property?
Now that you have an idea about the way in which your marital property will be divided, it’s important to know what assets will be classified as marital property and which will be classified as separate property. Generally speaking, any asset (or debt) you and your spouse acquired during your marriage is going to be classified as marital property. What kinds of items typically get classified as marital property? Some examples include:
- Home and other real estate;
- Household items, such as furniture, art, electronics; and
- Bank accounts, pensions, stocks, and retirement plans.
Debts also can be classified as marital property, as long as the debt was acquired during the marriage. Common marital debts include those from credit cards, real estate, automobiles, and other major purchases.
What doesn’t count as marital property? Nearly all property acquired during the marriage will be classified as marital property, but there are some exceptions, such as:
- Gifts to only one spouse;
- Property acquired by one spouse after a legal separation;
- Property excluded by a premarital agreement;
- Property acquired before the marriage; and
- Certain increases in value of premarital property.
Determining whether an asset will be classified as marital property can become extremely complicated, especially when, for instance, one spouse owned property before the marriage but the spouses both contributed to its upkeep during the marriage. An experienced Naperville divorce attorney at the Law Office of Elizabeth J. Chacko, P.C. can discuss your situation with you and can answer your questions today.