Is Illinois a 50/50 State for Divorce?

In Illinois, marital property is not divided evenly 50/50 between the two spouses. This is because Illinois is what’s known as an “equitable division” state. This means the court tries to divide marital property fairly between the two parties. They base this off of a long list of factors including the length of the marriage and how much each spouse earns.

How is Property Divided in an Illinois Divorce?

In the US, there are generally two ways to divide property in a divorce. The first is called “community property”, where marital property is valued and split evenly down the middle. The second is what’s called “equitable division” where the property division aims to be fair but is not necessarily an even split.

Illinois is an equitable division state, meaning that in most cases property is not split 50/50. The court uses a number of criteria to figure out what’s “fair”, including:

  • How much each side has contributed (income, debt, as a homemaker, etc.)
  • Any property hidden or destroyed in the course of the marriage
  • Value of property
  • Length of the marriage
  • Economic circumstances of each spouse, and where children are
  • Financial contributions from previous marriages
  • Any prenuptial or postnuptial agreements
  • The status of each spouse, including age, health, occupation, employability and other
    similar factors
  • Child-rearing costs and expenditures
  • Existing court maintenance orders
  • Anything that would affect a spouse’s ability to make money in the future
  • Consequences of tax reallocation from a property division.

Not considered is any marital misconduct. For instance, if a spouse had an affair. This is because Illinois is a no-fault divorce state.

During the divorce process, couples will need to create a list of their personal property, automobiles, bank accounts, retirement funds, investments, houses, among other things. Almost anything that was purchased after the start of the marriage and was not a gift is considered marital property to be divided.

Speaking honestly, the more you and your spouse can decide without an attorney – the better. Like many things in a divorce, once a judge is brought in to make a determination you don’t have as much control on the outcome.

Does the Length of the Marriage Change How Property is Divided?

Yes. Generally speaking, the longer a couple is married the more their finances and property get intermingled. So when a judge has to evaluate if a property division is fair, they will take this into account.

When marriages don’t last for a long time (there is no magic number) the judge is more likely to separate assets based on the individual contributions of each spouse.

Legal Agreements Before and During the Marriage

In Illinois, a prenuptial or postnuptial agreement is enforceable during a divorce. These agreements lay out in writing what happens to property in the event of a divorce.

Many couples choose to enter into these arrangements to protect certain businesses or estates from being included in marital property. Or maybe a spouse with a significant amount of debt wants to protect their spouse in the event of a divorce. Another reason might be to ensure property from a previous marriage is protected for the children of that marriage.

Regardless of your reasons, a valid prenuptial agreement will be used to divide property during divorce. However, if you entered into a prenuptial agreement that’s found to be “unconscionable”[1] or wasn’t given full disclosure of your spouse’s property when you signed it, it may be thrown out.

(link: http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2087&ChapterID=59)

Separate Property, Gifts, and Inheritances

Only “marital property” is able to be divided in a divorce. Basically, most things acquired during a marriage or that were purchased with co-mingled funds are considered marital property. But things like gifts and inheritances are generally left out.

That said, there are exceptions where non-marital property may be considered as marital. For instance, if an inheritance is put into a joint bank account or used to pay for joint expenses.

Also, just because a lease or title isn’t in both spouse’s names doesn’t mean it’s not marital property. Property division is one of the more complex areas of divorce, so when in doubt, it’s best to consult a family attorney.

Specifically, non-marital property in Illinois is defined as[2]:

  • Property acquired by one spouse by gift, legacy, or descent
  • Property acquired by one spouse in exchange for property that spouse acquired before the marriage or by gift, legacy or descent
  • Property acquired by a spouse after a judgment of legal separation
  • Property excluded from the marital estate by valid agreement of the parties (for example, by a prenuptial agreement)
  • Any judgment or property obtained by judgment awarded to one spouse from the other
  • Property one spouse acquired before the marriage
  • The increase in value of non-marital property, irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effort of a spouse, or otherwise, subject to the right of reimbursement
  • Income from any of these types of non-marital property, if the income is not attributable to the personal effort of a spouse.

Assumed Debt

In Illinois, any debt incurred before the marriage is not considered as part of the marriage. However, any debt incurred after the marriage such as a mortgage or credit card debts is assumed to belong to both spouses.

If you can’t afford to pay off the debt right away, there are usually two ways to deal with it. First, you can decide to continue sharing the existing debt you have. Otherwise, the debt can be divided equally.

Frequently Asked Questions

What is considered marital property in Illinois?

Almost anything you and your spouse acquired after you got married is considered marital property. This includes investments and stocks, retirement accounts, furniture, the family home, cars, bank accounts, and more.

This continues to be true, regardless of who holds the specific title to the item.

Also, it’s important to note that over time, non-marital property can become marital. For instance, a home that is purchased before marriage would be initially considered non-marital property. But over time, if both spouses significantly contribute to the mortgage or it’s refinanced in both of their names then it would likely be considered marital during a divorce.

Another common example of something changing from non-marital property to marital property is when gifted or inherited money is placed in a joint bank account.

All property is considered marital property in Illinois unless it can be proven otherwise.

Is inheritance marital property in Illinois?

Money gained from an inheritance is not considered marital property as long as it isn’t commingled with marital funds. In other words, inheritance has to remain separate to stay non-marital.

However, where the money is physically is only one part of the equation. If money from an inheritance is used on joint purchases or expenses, it may very well be considered as belonging to the marriage.

One way to protect an inheritance you received is to keep it in a separate bank account in your name and to leave it there. A second way would be to enter into a postnuptial agreement that defines how the inheritance is divided.

How is property equitably divided in a divorce?

When some people hear “equitable division” they think that property is split evenly down the middle. This is not the case in Illinois. Equitable division means that property is divided in a way that is fair. In the end, this can mean that the value of a property might be split 60/40 or 70/30 if deemed appropriate.

This is to try and protect a lesser earning spouse, or a spouse with health difficulties. Because the law takes a wide range of factors into account, it is fairly flexible.

The best and easiest way to split property is to come to an agreement with your spouse. This can, and probably should, be done with the aid of an attorney.

When determining how best to divide property a judge will take the following factors into account:

  • How much each side has contributed (income, debt, as a homemaker, etc.)
  • Any property hidden or destroyed in the course of the marriage
  • Value of property
  • Length of the marriage
  • Economic circumstances of each spouse, and where children are
  • Financial contributions from previous marriages
  • Any prenuptial or postnuptial agreements
  • The status of each spouse, including age, health, occupation, employability and other similar factors
  • Child-rearing costs and expenditures
  • Existing court maintenance orders
  • Anything that would affect a spouse’s ability to make money in the future
  • Consequences of tax reallocation from a property division.

How is debt divided in an Illinois divorce?

Both spouses are jointly responsible for any marital or joint debt. This usually includes things like mortgages, credit cards, and auto loans that were taken out after the marriage. Debt that belonged to one spouse before the marriage is usually not included.

The simplest and cleanest way to handle joint debt in a divorce is to pay off the remaining debt. This can be done by selling the family home or using other marital property. The advantages of paying off loans are numerous. It gives you a fresh start and is much better on your credit score.

However, there are a few other options for splitting marital debt when paying it off isn’t an option.

The first is to continue sharing the debt. This can be risky, especially if the other party stops paying their share.

The second option, which is a little trickier to set up, is to divide the debt between you and your spouse. If you can’t pay off your debt, this may be the safest option as you won’t be on the hook for your spouse. That said, some creditors still go after both parties if a single person defaults on payments, so there is still some risk there.

Are separate bank accounts marital property?

Probably not. In most cases, only gifts, inheritance, or property acquired before the marriage are considered non-marital. Even then, if those were commingled with marital funds then it’s assumed to become marital property.

A common misconception is that just because someone opens a bank account in their name alone, it’s not subject to property division. This is false. And if they try and hide funds in a separate bank account it could have serious consequences.

That said, there are cases when a separate bank account might be non-marital. For instance, if you received inheritance money and put it into a bank account in your name and didn’t commingle the funds, it would be treated as non-marital property.

Can my wife take my retirement in a divorce?

Retirement funds like pensions, 401K plans, and social security benefits are considered when dividing property in Illinois.

However, because the division is equitable, the funds are not simply split down the middle. How specific types of plans are divided varies somewhat, but here is a quick overview.

Pension Plans: Pension plans are usually valued at the time of the divorce. It’s then determined how much of the value is considered a marital asset. Once that is complete, the marital portion of the pension will be divided either through a buyout or splitting the asset at retirement.

401K Plans: Like a pension plan, your 401K can be divided by buying out the other spouse or splitting it into separate 401K accounts. Most people prefer to split the funds into separate 401K plans.

Social Security: By and large, social security is left alone and not divided during a divorce.

Who gets the house in a divorce?

A family home is usually considered marital property in Illinois. Even if the house was purchased prior to the marriage, if both sides significantly contributed to paying the mortgage it would likely be marital property.

In marriages with children, the spouse who spends the most time with the kids may be allowed to continue living in the home. This is to try and minimize the disruption to their lives. It should be noted this is not a hard rule, however.

In cases where one spouse is allowed to continue living in the home, the other spouse would have to be bought out of their share of the home’s value. This may be done with other pieces of marital property or in cash.

Is it illegal to hide money from your spouse?

Yes. At the beginning of a divorce, both couples are legally required to declare any marital and non-marital property. Intentionally hiding money from your spouse can incur serious consequences if found out by an Illinois family attorney.

Unfortunately, spouses trying to hide money is all too common, especially in a high-asset divorce. This is done in any number of ways: by funneling money into a business, making an expensive purchase, or making phony loans to friends.

Regardless, an experienced family attorney will know when formal discovery or hiring a specialist is required. Any hidden assets found will be divided equitably. If your spouse was caught hiding it, they may deem it equitable to give the lion’s share to you.

Or the judge may even order additional fees or costs for the spouse who is caught. Either way, a spouse hiding money can face serious consequences if found out by an experienced Illinois family lawyer.

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