Divorce proceedings in Illinois require couples and their Illinois divorce attorneys to determine the most equitable method of dividing assets. Illinois law stipulates that this division must be equitable, but equitable does not mean an equal 50/50 split. Indeed, there are many factors that must be considered prior to the signing of the final settlement.
Understanding Property Rights of Married Individuals
Individuals in Illinois have the right to purchase, sell, or give away property they own. However, once a spouse initiates divorce proceedings, the court will issue a stay prohibiting the sale of any property without permission of the other spouse or the court. This protects both parties and ensures that both parties will receive an equitable settlement of the marital estate. However, these protections and rights do not extend to unmarried cohabitants.
Marital Property Defined
Marital property is all property that acquired during the marriage and prior to the dissolution of the marriage. This property can include homes, businesses, investment accounts, bank accounts, artwork, furniture, etc.
Exclusions to Marital Property
Some assets acquired during the marriage are not considered marital property. Gifts such as an inheritance are excluded, as are property and other assets acquired prior to the marriage. Moreover, other exclusions may apply if specific property was excluded under a prenuptial agreement.
An individual’s Illinois divorce attorney and the courts will seek to divide property and debts between the divorcing spouses in as equitable a manner as possible. This is rarely a 50/50 split and the court will consider a number of factors when determining how to divide assets and debts between the divorcing couple. Some of these factors include:
- The length of the marriage
- The contributions of each spouse towards the acquisition and preservation of property
- The economic position of each spouse
- Prenuptial agreements
- Child custody and child rearing responsibilities
- The value of marital property
Untangling Commingled Property
Spouses frequently commingle their property during a marriage. The most common commingled asset is the family home. Other instances include shared bank accounts, second homes, and vehicles. Most of these assets are physical, and can’t be divided. However, it can be distributed. For instance, Spouse A can keep the car, boat, and bank account, while Spouse B gets to keep the home. It’s also possible for one spouse to effectively buy a marital asset from the other by reimbursing them for the property they have contributed to the marital estate.
