4 Things You Should Know About Property Division

Divorce can be a complicated process, due to the various laws involved. Dividing property is a major part of resolving a divorce case.  In Illinois, division of property can be governed according to a legal concept known as “equitable distribution.”  Equitable distribution is a model of law which provides that property can be divided “equitably,” not necessarily “equally.” The court may consider various factors in determining how to divide marital property.  The results can often surprise people, and Navarro Family Law is here to help by highlighting some of the most important aspects of property division. 

Factors Considered

What is ultimately deemed as an “equitable” division of property will be decided by the judge.  Among the factors a judge may consider can include, but are not limited to, the following:

• The total value of property and assets in each parties’ name
• The non-marital property of each party (property obtained before the marriage, or through inheritance or gift, which is kept separate throughout the marriage)
• Whether either party disposed of assets inappropriately (“dissipation“)
• The age, health, and employability of each spouse

Although the law does not require that marital assets be divided equally, judges often do allocate them equally as a simple way of resolving cases.  The concept of “equitable distribution” allows the judge, in his or her discretion, to give one spouse more than 50% of the total property after considering relevant factors such as those listed above.  For example, say that Spouse A is disabled, unable to earn income, will not be receiving spousal maintenance (“alimony”), and has very little property in his/her name, while Spouse B earns substantial income each year and has several assets in his/her name which are of substantial value.  A judge may decide, in his or her discretion, to grant Spouse A more than 50% of the marital property due to these circumstances.

Negotiating a Division of Property

Knowing that marital property is often divided 50/50,  spouses can negotiate what they believe to be an equal split of their marital assets.  If one spouse has more assets than another, the extra amount can be offset using different property, such as the balance of savings, retirement or investment accounts, or the equity in real estate.  For example, if Spouse A has more assets than Spouse B, the parties can agree for Spouse B to receive a portion of Spouse A’s savings, such that the parties leave the divorce with an equal 50/50 split of the total property between them.

Types of Property to be Divided

The following are common examples of property that are divided in a divorce:

• Savings accounts
• Retirement, investment, or pension accounts
• The equity in real estate
• The equity in cars or other vehicles
• Proceeds of the sale of real estate, vehicles, or other property

Debts Are Also Divided

Like property, debts are often divided in a divorce.  Debts accumulated during the marriage can be deemed “marital.”   This means that a spouse could be ordered to pay towards debts that he or she may not have actually incurred.  In some cases, if the debt was incurred recklessly, excessively, unusually, and outside the knowledge or control of the other spouse, the other spouse could argue that he or she should not be required to contribute towards that debt.  Similar to how property division is negotiated above, the parties to a divorce case can negotiate a split of the responsibility for paying marital debts, and can even incorporate this into their final property settlement.  For example, Spouse A receives 60% of the marital property in exchange for agreeing to be responsible for more than 50% of the marital debt.  The parties can consider the extra value of property that Spouse A is receiving beyond 50%, and agree that Spouse A will pay an extra amount of debts, equal to the extra property received.  For example, Spouse A receives an extra $3,000 of property, in exchange for paying an extra $3,000 of debt.

When divorce proceedings become unavoidable, it is important to be prepared for the division of assets. Navarro Family Law can help you negotiate a fair settlement of division of property and debts. To learn more about the process, or to receive a consultation call (815) 207-9570 today.