How is property divided in a divorce?
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.
Most of our clients suffer from what I call a “Pronoun Problem” when they first come to see us. They believed that something held in their individual name would remain their property when the divorce was final. 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!
I have even used this example, got a nod of the head confirming that they understand, but then they ask, “but my car is mine because it is in my name, right?” Keep reading to understand the key process on dividing property.
Key Question You Must Ask
The key question that you must ask is, “was the item in question acquired during the marriage?” If the answer is yes, it is likely marital property. For example, a paycheck is written to an individual spouse and not to the marriage couple. However, if the work was done during the marriage, then it is presumed to be marital property.
The division of property is done in 4 steps.
Identify. Before we know what you are going to get, we must first identify all of the property owned by either you or your spouse.
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.
Determine 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.
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 your case.
Example of Equitable Distribution of Property
Imagine a husband and wife are getting divorced after a marriage of 20 years. Both parties earn approximately $75,000 per year, and have approximately $500,000 in assets between all their home, retirement accounts, bank accounts, and other miscellaneous property. The husband has over $5 million dollars in non-marital money because of an inheritance he received during the marriage. Should the parties simply split the assets equality: $250,000 to each? A Judge would likely look at several other factors but could 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 of the marital property in this case.
In sum, Illinois does not simply divide everything 50/-50. Instead, we must look at the individual circumstances of each case. If you are ready to learn how things could be divided in your specific situation, we are ready to help. You can call us or schedule an appointment online now.