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How is Property Divided in an Illinois Divorce?

What Property Can be Divided in a Divorce?

Typically, marital property is eligible for division, and non-marital property is not. Marital property is generally any property that is acquired during the marriage, with some exceptions. Some examples of marital property which can be divided in a divorce include:

• Balances of checking or savings accounts
• Retirement or investment accounts
• Equity in the residential property where both spouses lived during the marriage (the “marital residence”), or the proceeds of the sale of residential property
• Cars, boats, other vehicles, the equity in or proceeds from the sale of such vehicles

The following are some general examples of non-marital property, which would not be divided in a divorce:

• Property received as a gift. This can include gifts from people outside the marriage, or even gifts from one spouse to the other.
• Property acquired by inheritance.
• Property acquired before the marriage, which remains separate and in the owner’s sole name. A home that was purchased in contemplation of the marriage, however, can still be considered marital property.
• Property that was received in exchange for giving away non-marital property, as long as the newly received property is kept separate and solely in the owner’s name.

Illinois statute includes a presumption that all property acquired during the marriage is marital property. This presumption can be overcome by clear and convincing evidence. Thus, strict documentation would better support an argument that new property was received in any of the circumstances mentioned above, and that it is therefore non-marital property.

It is important to note that any non-marital property owned by either party, although not up for division, can still be taken into consideration by the court when dividing and distributing the marital property. As mentioned below, it is possible for a party with substantial non-marital property to be awarded less marital property than a spouse who has little or no non-marital property.

How Marital Property is Divided

Illinois is not a state where marital property is automatically divided 50/50 among the spouses. In practice, some judges may try to divide property equally, but Illinois statute does not require this. Our statute provides that a court shall divide marital property in “just proportions,” and can consider many relevant factors in reaching its decision. Factors that a court will consider can include the following:

• How much each spouse contributed towards buying and maintaining property, and towards increasing or decreasing the value of property. This includes contributions towards both marital and non-marital property. In addition to financial contributions, a court can also consider a party’s contributions as a home maker, caring for the spouses’ children and the home during a long marriage.
• Whether there has been dissipation of marital assets by either party, that is, whether either party had used, transferred, or destroyed marital property for purposes unrelated to the marriage, at a time when the marriage was undergoing an irretrievable breakdown.
• The value of the property assigned to each spouse. If one spouse owns a substantial amount of non-marital property, the court may decide to award the other spouse a larger portion of the total marital property.
• The length of the marriage. In a lengthy marriage, if one spouse had accumulated most of the marital property, and the other spouse had primarily raised their children and tended to the home, the court may split the remaining marital property equally. In a short marriage, a party’s contribution as a home maker might be given less consideration and weight in the judge’s analysis.
• The economic circumstances of each spouse. The court will look at each spouse’s job skills, experience, and work capacity. Under some circumstances, it could be possible for a spouse with no employment or property to be awarded a larger portion of the marital property.
• Any rights and obligations arising from a previous marriage.
• Any prenuptual or postnuptual agreement of the parties. A prenuptual agreement can designate certain property as non-marital when that property would otherwise be marital under the law. A prenuptual agreement can also provide that each spouse receives specific items of property in the event of a divorce.
• The age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties. The court may take into consideration each spouse’s future earning capacity and employability, including whether either spouse is no longer employable due to age, health, or disability.
• Custodial provisions of any children. A court may award the marital home to the parent who is awarded the majority of parenting time, to provide for continuity in the children’s lives. The court can also award this parent a greater proportion of the marital property to meet the increased support obligations for the children. The court may simply award this parent the marital home, and award other marital property to the other spouse in place of his or her interest in equity of the home.
• Whether property is awarded instead of spousal support. A court may decide to award one party a greater share of marital property instead of awarding maintenance (alimony).
• The reasonable opportunity of each spouse to acquire future assets and income.
• Any tax consequences for the parties that result directly from the court’s division of property in the divorce.
• Any other relevant factors, including the interest in avoiding future litigation and conflict after the divorce.

Each case will be different, and judges may use the above factors to determine whether marital property should be equally split, whether a spouse should receive more property than the other, or whether each spouse should receive specific items of marital property. The court will not consider any marital misconduct of the parties in determining how to split property.

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If you are seeking professional representation in a Will County, Dupage County, or Kendall County divorce, contact Navarro Family Law to schedule a consultation: (815) 207-9570.