When you divorce, there will be compromise needed regarding property division and other matters. But this does not necessarily mean your spouse will get half of everything. Find out more about property division in Illinois divorces in this blog post, and if you have questions, our Naperville divorce attorney at Keller Legal Services can assist you.
It is commonly assumed by many that you must give up 50% of what you own during a divorce. But Illinois requires an equitable division of assets, which does not necessarily mean 50/50.
What does an equitable division of assets mean? Generally, the court wants both spouses to be treated fairly when property is divided. This means that each party should receive a fair share of the marital estate after various factors are accounted for, such as:
Some divorce judges may review these and other factors and decide that a 50/50 asset split is appropriate. But neither side should assume that there will be an equal property split. Fairness doesn’t necessarily mean equal division according to Illinois law.
It might sound unfair at first glance that one spouse receives more property in an Illinois divorce. But the court is focused on dividing marital property justly, and this often means an unequal distribution.
However, a spouse’s misconduct does not affect how assets are divided. Illinois is a no-fault divorce state, so the court will not fault one spouse for misconduct, such as adultery. That said, Illinois courts will consider financial misconduct, such as if one party wasted marital assets on purchases for a mistress. The court would order the unfaithful party to reimburse the marital estate if funds were not used for the benefit of the family.
The principles of equitable division also govern the division of marital debt. So, if you and the other party have a home loan, school loan, auto loan, and credit cards, you must devise an equitable solution according to your circumstances. But again, the division may not necessarily be 50/50.
No law tells us who gets the marital home in an Illinois divorce. If the parties cannot afford to keep the home, the family court judge will order it to be listed and sold promptly. After that, the couple may divide the proceeds according to equitable property division rules.
However, other situations can apply to questions about who gets the house. For example, if there are children from the marriage, the judge may award the home to the parent who lives with the kids. This does not mean the non-custodial spouse will not get anything; the judge may order a buyout of the other party’s share of equity in the property.
However property is divided in an Illinois divorce, the first step is determining if it is marital or separate property. Marital property means most assets and debts the parties acquired while married. Property is considered non-marital if the spouse owned it before the marriage. Or they acquired when they were married through inheritance or gift.
A spouse’s separate property may include income from the separate property, such as rental property, unless the other spouse’s efforts contributed to the income. Any increase in property value of the separate property during the marriage is also considered separate property. The other party may have to be reimbursed for what they contributed to the increase. Some other types of separate property are:
Marital property means anything that was acquired in the course of the marriage with marital funds. Note that spouses may convert their separate property into marital property if they sign a written agreement. Spouses can state whether a specific property is marital or separate with a pre or postnuptial agreement.
One spouse also can convert separate property into marital property if they change the title to joint ownership. In this case, the family court would likely assume that the party wished to make a gift of that property or asset.
A potential stumbling block during divorce is if assets are commingled, meaning a mixture of marital and separate property. It is common for spouses to combine their separate assets during the marriage, but this should be considered carefully.
For instance, suppose you had a premarital bank account with $50,000 in it. It could become marital property if the other party contributes to it during the union. Additionally, your house could become marital property if both parties contribute to the mortgage.
If you and your ex cannot decide who owns what, the family court judge must get involved. The judge must rule on whether the commingled property was a gift or if the original party needs to be reimbursed in the divorce. Many commingled property situations are complex, and your divorce attorney must get involved.
You can avoid problems with commingled property if you use care during the marriage with how property is titled and used. For example, if you bring a large bank account to the marriage, be sure that the other party does not make deposits or withdrawals from it. Keeping separate property separate for the duration of the marriage is essential in case of divorce.
If you are thinking of a divorce and wonder how property division will be handled, you should promptly talk to an attorney. Please contact our Naperville divorce attorney today at Keller Legal Services at (630) 505-1515 to answer your property division questions.
