How Are Assets Divided in Divorce in Illinois?

The division of assets in an Illinois divorce is a complex and often emotionally charged process. The key to understanding this division lies in the principle of equitable distribution, which Illinois law follows. Equitable doesn't necessarily mean equal, and this distinction is crucial for divorcing couples to grasp. While some may expect a straightforward 50/50 split, the reality is much more nuanced. The court considers numerous factors to determine what is fair, leading to outcomes that can differ significantly based on individual circumstances.

The Beginning: Factors That Impact Division

The Illinois Marriage and Dissolution of Marriage Act (IMDMA) guides how assets are divided. Under this law, the court aims to distribute marital property in a way that is just and equitable, but not always equal. There are several factors the court will weigh:

• Duration of the marriage: Longer marriages often result in a more even division of assets.
• Contribution to marital assets: This considers both financial contributions and non-financial contributions, such as homemaking and raising children.
• Financial circumstances: The financial standing of each spouse post-divorce is a vital factor, including earning capacity and future needs.
• Children's needs: If there are children, their financial requirements can play a major role in determining who gets what, particularly regarding the family home.

The aim is to divide assets in a way that places both parties on relatively equal footing as they move forward in their separate lives.

Marital vs. Non-Marital Property

One of the first steps in dividing assets is distinguishing marital property from non-marital property. Illinois law is clear in defining the difference between the two:

• Marital property: Any assets acquired during the marriage, regardless of whose name is on the title, are considered marital property.
• Non-marital property: Property acquired before the marriage, gifts, inheritance, or anything designated as non-marital by a prenuptial agreement falls under this category.

In most cases, only marital property is subject to division. However, things can become murky when non-marital assets get commingled with marital assets. For example, if one spouse receives an inheritance but deposits it into a joint account used for family expenses, it may become marital property subject to division.

Financial and Physical Assets

Assets fall into several categories, and understanding how each is divided is critical:

• Real estate: The family home is often the most significant marital asset, and its division can be contentious. In some cases, one spouse may keep the home, particularly if children are involved, while the other receives compensation through other assets or financial arrangements.
• Retirement accounts and pensions: These are also considered marital property if they were accrued during the marriage. Special orders, such as Qualified Domestic Relations Orders (QDROs), may be required to divide these assets.
• Bank accounts and investments: Any savings or investment accounts that have accumulated during the marriage are generally subject to division. This includes stocks, bonds, and mutual funds.
• Businesses: If one or both spouses own a business, this adds another layer of complexity. The court will likely look into the business’s value, both now and in the future, to determine how it should be divided or compensated.

Debt: The Unseen Side of Division

Often overlooked, debt plays a significant role in asset division. In Illinois, marital debt is divided in much the same way as marital assets. This means debts incurred during the marriage, such as mortgages, credit card debts, and car loans, are divided equitably between the spouses. As with assets, equitable does not mean equal, so one spouse may end up with a larger portion of the debt, depending on the financial situation and other relevant factors.

Role of Prenuptial and Postnuptial Agreements

Prenuptial and postnuptial agreements can significantly impact how assets are divided in Illinois divorces. These agreements allow couples to predefine what will happen to their assets in the event of a divorce, often making the division process simpler and more predictable. However, these agreements must be deemed valid and enforceable by the court, meaning they need to be entered into voluntarily, without coercion, and both parties must fully disclose their financial situation at the time.

Conclusion: Fair But Not Always Equal

Illinois courts strive to achieve fairness when dividing marital assets, but the outcome can vary widely depending on the specific details of each case. With so many factors at play, it's essential for both parties to work with experienced legal counsel to ensure their financial interests are protected.

In summary, while the Illinois divorce process seeks to divide assets equitably, the division is rarely an even 50/50 split. Courts consider the duration of the marriage, contributions to the marriage (both financial and non-financial), and the financial circumstances of each spouse moving forward. Non-marital property, such as gifts or inheritances, is typically excluded from division unless it has been commingled with marital assets. Debt, often an overlooked aspect of divorce, is divided along similar lines, based on fairness rather than equality. Prenuptial and postnuptial agreements can significantly influence the asset division process, offering some predictability if they are valid and enforceable.