Splitting Assets in Divorce in Illinois
Illinois is an equitable distribution state. So, when spouses are splitting assets in a divorce, marital property is not divided evenly between spouses. Instead, the court follows the Illinois property division laws to split assets based on what is fair.
Property division is one of the most divisive times in a divorce because no one gets exactly what they want.
To split the assets in your divorce, try understanding what your spouse wants most. Balance what they want with what you want and find a compromise.
That being said, many people getting a divorce have a hard time compromising with their soon-to-be ex. And, in truth, finding a compromise the other party can accept isn’t always in your best interest.
How to Split Assets and Debts
Before the court gets involved, you and your spouse try to divide marital property on your own. This process can be done on your own or in mediation. It helps to use tools like a property division worksheet to keep things organized and on topic. When parties can’t come to an agreement, the court decides how to split property.
Illinois is an “equitable distribution” state, which means the court won’t simply divide marital property evenly. Rather than splitting everything 50/50, they look at each party’s current situation and future needs. The court uses the factors listed below when dividing marital property.
Factors the Court Considers in Property Division
The court decides how to divide property by using the Illinois state statutes. Illinois law sets out 12 factors to determine how property should be split:
- Each Party's Contribution – The amount they added to the marital estate whether that be financially or through homemaking.
- Dissipation by Each Party – Dissipation is the hiding or wasting of marital assets.
- Value of Property Assigned – Looking at how much each party is taking to prevent either party from getting a disproportionate share of assets or debts.
- Length of Marriage – The amount of time put into the marriage.
- Relevant Economic Circumstances – Understanding each party’s current financial position (includes ensuring that the parent responsible for the children can provide housing).
- Prior Marriages – If either party already pays or receives maintenance or child support.
- Agreements – Prenuptial and postnuptial agreements.
- Statuses – Each party’s age, health, station, occupation, income, skills, employability, estate, liabilities, and needs.
- Parental Responsibilities – The time and money required to continue to raise any children.
- Maintenance – The impact of maintenance or property given to a party in place of maintenance.
- Earning Potential – How much each party will likely earn and what events that led to potential.
- Taxes – The tax consequences of each asset.
The court uses these equitable distribution factors to divide only marital property.
Marital vs Non-Marital Property
Property refers to any assets or debt gained by either party. How that property is classified depends on a couple of key factors, such as when it was purchased and how it has been used. But, it’s not always easy to understand whether the court will consider an asset marital property or not.
To best protect your assets and your future, speaking with an attorney goes a long way. Especially attorneys that focus on family law like our attorneys at Sterling Hughes. An attorney like this will know the information specific to family law, like whether the court will consider something marital property.
Generally, anything bought in the marriage is marital property because it was bought with shared funds. However, there are certain instances where property is considered non-marital property.
Non-marital property or separate property is anything not part of the marital estate. This includes things like inherited property, property gained before the marriage, and property gained after a legal separation. For the full definition of non-marital property, check out our article on non-marital property in Illinois.
A non-marital asset can become a marital asset if you’re not careful–this is called commingling. Commingling occurs when an asset is shared between spouses. For example, if one party owns a house before marriage but both parties live in it throughout the marriage, it is a marital asset.
Are you ready to move forward? Call (888) 240-8146 to schedule a strategy session with one of our attorneys.
Key Factors Within Property Division
All divorces are different, but many include similar assets. There is a common theme in divorces where oftentimes one party thinks they should get to keep the lion’s share of the assets. That’s why it’s so important to have an attorney.
Get more information on assets that are present in your divorce:
The Marital House
The marital home is a unique piece of property in family law. When kids are involved in a marriage, the court wants to look out for their best interest. This means the court can make sure the parent who will have the children for the majority of the time gets the house.
When there are no kids, the biggest factors regarding the house are who wants it and how the other party can be compensated. The house is often the largest asset in a divorce.
A lot of people have a hard time with retirement accounts because people think the accounts should not be a marital asset. But, if a retirement account is added to during a marriage, it’s a marital asset.
This leads to a greater balance of assets because if only one party worked and the other took care of the home, there is likely only one retirement. Only one party was earning cash, but that view undervalues household labor.
Similar to retirement accounts, even if only one party is responsible for the investments, it is a marital asset. Another similarity that muddies the water is that most people don't want to just cash out their investments.
There are some unique situations where an investment is not considered a marital asset. For example, if an investment was invested in an account separate from the other party.
Inheritances are a big deal because a lot of people want to keep their inheritance for themselves. And they can do that if they’ve done everything right.
But, like anything else, an inheritance can become a marital asset if it is commingled. It could become commingled in a variety of ways such as if it’s put into a shared account or spent on a shared asset.
Debt can be tricky, especially when the debt is one party’s. If it was all gained before the marriage, it usually stays with that one person. But, if the debt was gained during the marriage, the other person may also be on the hook for it.
Hidden Assets or Asset Dissipation
All assets must be accounted for in the property division process. Asset dissipation is when a spouse hides an asset or purposefully wastes an asset. If this happens, the court needs to know about that. This is done by filing a claim for dissipation before the trial or after the discovery process.
Prenuptial and Postnuptial Agreements
Legal agreements about property division impact who gets what. But there can be issues with an agreement, whether it was a prenuptial agreement or a postnuptial agreement. For example, under a prenuptial, one party could have been coerced into signing it under threats of the other party being unwilling to get married.
Frequently Asked Questions
What assets cannot be split in a divorce?
Non-marital assets such as inheritances, gifts, or pre-marital assets cannot be split in a divorce. However, if an asset becomes commingled, then it can be split.
What assets get split in a divorce?
Marital assets such as the marital home, furniture, and retirement accounts are split in a divorce. How the assets are divided is up to you and your spouse. If you want an asset, but your spouse won’t budge, the court will decide.
Does my wife get half of everything in a divorce?
Property may be split 50/50 in divorce, but it doesn’t have to be. The court will look at the factors listed above and decide how to split the marital estate. Some property will not get split, and if you own the non-marital property, it is all yours.
How is property split in a divorce in Illinois?
Parties first try to split property on their own. If that doesn’t work, they get the help of attorneys and/or mediators. When parties cannot figure it out, the court decides on what’s left.
How long do you have to be married to get half of everything?
The length of a marriage is an important factor in determining property division, but there is no set length that decides how much you get. But, the longer you are married, the more likely property is to become a marital asset.
How do I protect my property in a divorce?
The best way to protect your property is to compromise with your spouse. As for non-marital assets, be sure to keep them financially and physically separate from your spouse. This prevents them from becoming commingled.
Does length of marriage affect divorce settlement?
Length of marriage is a factor the court looks at in property division. For example, it acts as a reference point for arguments around the value of homemaking. It also makes sure that short-term marriages don’t favor someone just trying to get money.
How long do you have to be married to get half of 401k?
Retirement accounts are split between parties if they were added to during the divorce. If a 401k is a premarital asset and isn’t added to during the divorce, it likely won’t be split.
Is Illinois a community property state?
Illinois is an equitable division state. So, no, Illinois is not a community property state. A community property state is one where nearly everything is considered marital property.