Divorce: Property Division in Illinois

January 16, 2013 (Press-News.org) When a couple divorces in Illinois, the court will equitably divide what is called "marital property." There are many misconceptions about what this actually means. First, an equitable division does not necessarily mean an equal division of marital property. Second, marital property does not mean all of the property owned by the husband and wife when they get divorced

What is marital property?

Marital property is generally defined as all property acquired by either spouse during the marriage. While this definition seems simple, it actually raises a multitude of issues. Under Illinois Law, a presumption exists that property acquired by either spouse during the marriage is marital property. However, not everything acquired by a spouse during the marriage is marital property. For example, an inheritance received by one spouse is not considered marital property. Further, income that spouse receives from a non-marital asset is also considered non-marital property.

It is important to focus on the word "presumption." The presumption applies to all property acquired during the marriage, even if that property is technically non-marital property. This means that the spouse who received the non-marital property during the marriage will have to prove that the property is in fact non-marital property. The spouse trying to prove that property acquired during the marriage is non-marital property will need detailed records showing the source of the property.

The spouse trying to protect non-marital money will also have to show what happened to his or her non-marital property during the marriage. Even if a spouse receives non-marital property during the marriage, non-marital property can effectively become marital property under certain conditions. For example, if a spouse comingles non-marital money with marital money, or uses marital and non-marital money together to purchase property during the marriage, the non-marital money may be treated as marital property.

Generally, non-marital property includes the following:
- Property acquired before marriage
- Property acquired by gift, legacy or descent
- Property received in exchange for property acquired before the marriage or in exchange for property received by gift, legacy or inheritance
- Property acquired after legal separation
- Property specifically excluded from marital property by valid agreement of the parties

These are just some examples of non-marital property. If a court designates certain property as a spouse's non-marital property, the court must assign that property to that spouse. That non-marital property will not be equitably divided between the parties.

Equitable distribution of marital property

After a court identifies the marital and non-marital property, and assigns to each spouse their non-marital property, the court will divide the marital property between the parties. While courts will frequently divide marital property on an equal basis, courts can use discretion when determining how much each spouse will receive and what specific property each will receive. The courts will look at a number of factors when determining what constitutes an equitable distribution of marital property. Under Illinois Law, equitable distribution is not affected by marital misconduct.

In determining a fair distribution of property within a divorce, a court can consider the following factors:
- The duration of the marriage
- The parties' individual contribution to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property
- The relevant economic circumstances of each spouse when the division of property
- The obligations and rights arising from a prior marriage
- The prenuptial agreement (if any) of the parties
- The age, health, occupation, sources of income (present status and future potential), vocational skills, employability and liabilities of each party
- The physical custody of children in the family (for example, if the children reside with one parent, that parent may be awarded more property)

While a court will assign a spouse's non-marital property to that spouse, the ownership of non-marital property can affect the distribution of marital assets. A court can, for example, award a spouse a larger share of the marital assets because the other spouse has a substantial portfolio of non-marital assets.

Ultimately, property division is determined on a case-by-case basis. While certain guideposts do exist, a court will have a lot of latitude between these guideposts. That is why it is important to carefully identify the non-marital and marital assets, each party's financial circumstances, and each party's needs. Depending on the types of assets involved, the length of the parties' marriage and each party's financial needs, classifying and distributing marital and non-marital assets can become extremely complex.

If you have questions about the classification of marital and non-marital assets, and how such assets are treated in a divorce, you should contact a knowledgeable family law attorney.

Article provided by Law Offices of George M. Sanders, PC
Visit us at www.sandersfamilylaw.com