4 Steps to divide property in a divorce

Divorce , Property


Every divorce in Illinois requires the court to divide marital property of the parties. In most cases, spouses can eventually agree on how to divide property without the court getting involved. However, getting to an agreement can be tricky and cause many fights. By the end of this, you will know the key steps to understanding how to divide property in an Illinois divorce. Essentially, the process breaks down into 4 steps:

  1. Identify. Before we know what property that you are going to get, we must first identify all of the property owned by either you or your spouse.
  2. Classify. After we have identified everything, then we classify whether the property is marital or nonmarital. Marital property is anything acquired by either spouse during the course of the marriage, with a few exceptions. Title does not matter! Non-marital property is property that you had prior to the marriage, gifts received during the marriage, inheritance received during the marriage, and other not so common items.
  3. Value. We need to agree on the value of each piece of property. If we cannot agree, the court will determine the value based on evidence presented, which is a very expensive process.
  4. Divide Equitably. Most people mistakenly think that all property is divided 50/50, which is simply not the case. Each case is unique, and property must be divided based upon the unique circumstances of the case. 

Marital property: anything acquired during the mass marriage, with a few exceptions.

Non-marital property: property that one of the spouses had prior to the marriage that remained separate throughout the marriage. It may also be a gift received during the marriage or an inheritance received during the marriage that remain the separate property of the spouse receiving the gift/inheritance.

When most people come to see an attorney, they suffer from a pronoun problem in many cases. People believe that something held in their individual name remains their property. For example, if they have a separate checking account they believe it belongs to them, because it is in their name only.

This is FALSE!

The important question is not who owns the property in title, but was the item in question acquired during the marriage? If the answer is yes, it is marital property. Even if the paycheck belongs to individual spouses, if the work was done during the marriage, then it is presumed to be marital property.

After we have identified all the property and classified it as marital versus non-marital, we then have to divide them equitably not equally. In other words, when parties believe that everything must be divided 50-50, they are mistaken. 50/50 may be fair in some cases, but unfair in other cases.

For example, imagine a husband and wife that have been married 20 years, and are going through a divorce.

Suppose that both parties each earns $50,000 a year and have approximately $500,000 in assets between all home, retirement accounts, and other miscellaneous properties. Now suppose that we have also identified that the husband has over $5 million in non-marital money, because of inheritance he received during the marriage.

A court may now look at this and say that the wife should get a larger portion of the marital estate given that the husband has such a sizable non-marital estate. In other words, it is equitable for the wife to receive a larger share in this case. In some, the court does not simply divide everything 50-50. Instead, look at the individual circumstances of each case in order to come up with a reasonable resolution for the parties.

To know more about how your property can be divided, we offer a free initial phone consultation, contact Reidy Law Office LLC. Convenient payment plans may be available.