A primer on property division during an Illinois divorce

People preparing for divorces in Illinois should understand how property can be divided and know what property is subject to distribution between spouses.

Fairly dividing shared property is a top concern for many divorcing spouses, for both financial and sentimental reasons. Unfortunately, many people who are preparing for divorces in Lake Zurich may harbor harmful misunderstandings about state property division laws or the overall process. To avoid needless mistakes or legal missteps, spouses in Illinois should be sure to understand the following facts about property division.

Can spouses divide property themselves?

Under the Illinois Marriage and Dissolution of Marriage Act, divorcing spouses have the right to reach their own agreement regarding division of marital property. This agreement may provide for the disposition of any property that either spouse owns. However, a family law court must review the agreement and determine whether it is reasonable, given the economic standing of both spouses and other factors.

If an agreement is found unconscionable, the court will not approve it. Instead, spouses may have the opportunity to revise and resubmit the agreement for consideration. Alternately, the court may directly determine how property will be distributed between the spouses.

What if spouses can't reach an agreement?

If a family law judge must divide a divorcing couple's property, he or she will consider various factors to identify an equitable distribution. The Huffington Post explains that an equitable distribution is not necessarily an even, 50-50 division. Instead, it is a division of property that is deemed fair based on various criteria. In Illinois, the factors that a judge considers include:

  • The economic standing of each spouse, including any existing financial liabilities
  • The age, health, vocational skills and needs of each person
  • Each spouse's contribution to the collection or preservation of marital property
  • Any depletion of marital assets attributed to one spouse
  • The length of the marriage
  • The existence of a postnuptial agreement between the spouses

When distributing property, family law judges only consider marital property and separate property that has been commingled with marital property. Assets that are considered separate property remain with the person who originally owned them.

Which property is classified as marital?

Most property that spouses acquire after the date of marriage is considered marital property. However, gifts and inheritances that either spouse receives while married are categorized as separate property. Property that a spouse receives in exchange for separate property is treated as separate property. Additionally, property that is deemed separate in a postnuptial agreement will be treated as such when property is divided.

Navigating the property division process

Property division can be a complicated issue during divorce, and unfortunately, the disposition of property is typically not open to modification later. Considering this, spouses may benefit from speaking to an attorney for advice regarding this process. An attorney may be able to help a person understand his or her rights and pursue a reasonable, equitable final settlement.