Many Illinois divorces involve questions about alimony or child support and property and asset division. According to the Illinois asset division law 750 ILCS 5/503, marital property must be equitably divided during a divorce, which includes all assets acquired during the union. Any property owned by one party before the wedding date is theirs. However, legal issues surrounding property division can be complicated in practice, and determining marital and separate property can be contentious.
Learn about Illinois marital property laws in the following article. If you have questions about marital and separate property in your divorce, our Illinois property and asset division lawyers at Bruning & Associates can assist you today. Achieving the best property division result will require excellent legal representation, and our attorneys can provide it.
Illinois Is Not A Community Property State
First, it is essential to understand that Illinois is an equitable property state, not a community property state. This means that property is divided based on what the family court considers just and fair, considering each party’s income, earning possibilities, and contributions to the union.
Understanding the difference between community and equitable property states is vital during an Illinois divorce. The judge in the case will consider many relevant factors when deciding what type of property division is most fair. These factors include:
- Any effects that a valid prenuptial or postnuptial agreement has
- How long the marriage lasted
- Each party’s age, station in life, and health
- Whether one party is receiving alimony
- Each party’s vocational skills, occupation, and opportunities for employment
- The property value that each party receives
- Each party’s financial needs and debts
- Each party’s chances for future income and asset acquisition
- Each party’s prior obligations from an earlier marriage
- Any contributions made to the marriage by a homemaker
- Economic circumstances of each party
Some couples may be able to agree on property division issues, but others may need the help of a property and asset division attorney. If the couple cannot agree on property division then the case will eventually need to go to trial, and the judge will resolve all property disputes.
Marital Property In Illinois
An asset or debt is considered marital property if obtained during the marriage but before the date of divorce. For instance, if you and your spouse purchased a house together and used it when you were together, it is a marital asset. Other common assets that may be part of the marital estate are:
- Other real estate, such as vacation homes or rental properties
- Household goods, such as electronics and furniture
- Investments
- Pensions and other retirement accounts
- Savings accounts
- Vehicles
- Life insurance policies
While the assets above may often be marital assets, they also can be non-marital. Whether the asset is marital property depends on the nature of the item and not how the property is titled. That is why many retirement plans are often considered marital property, even if it is in one person’s name.
Non-Marital Property In Illinois
Illinois marital property laws also outline what may be considered non-marital property. Potential examples are:
- Funds received by you as a gift, descent, or legacy
- Money that was obtained after a legal separation
- Property that was bought before the marriage
- Property excluded by a valid prenuptial or postnuptial agreement
A typical example of non-marital property in Illinois is an inheritance. If you received an inheritance in money and you keep it in an account in your name, it will be considered non-marital property. However, specific actions by the owner could transform a non-marital asset into a marital one. The laws surrounding transmutation are complex, but an experienced property and asset division attorney can help you better understand marital and non-marital property.
How Assets And Debts Are Divided
With the help of your property and asset division attorney, you should determine which assets are marital property and then assign a monetary value to each. Determining what the asset is worth can help decide if the property division is fair and equitable.
For instance, a spouse with more property and a financially successful career might be required to take on more of the marital debt. The other spouse who earned less might receive more of the marital assets. If asset value is questioned, your attorney can help you hire a professional appraiser. Some financial assets, such as a retirement account, could be challenging to evaluate and require a CPA or actuary to assess.
Who Gets The Marital Home In An Illinois Divorce?
The family court’s decision about your primary home depends on the equitable distribution laws mentioned in this article. However, the marital home is the most valuable asset for many married couples. The equity in the property cannot be divided without selling it, so the court has fewer options.
This could be a viable option if one spouse owns enough assets to buy out the other party’s interest in the home. For instance, if your spouse gets the home, they may compensate you with other assets, such as a retirement account or vehicle. The next option is to sell the home, which may be the only choice when a couple does not have other significant assets.
If you and your spouse reach a property division settlement on your own, the judge will need to review and approve it. The judge will not approve a settlement agreement that is too one-sided or unfair to either party.
Facing Divorce? Talk To Our Illinois Property And Asset Division Lawyers
Property division is often a tricky part of an Illinois divorce, and you may have difficulty understanding the nature of the property you own. Our Illinois property and asset division lawyers at Bruning & Associates, P.C. can review your case and advise you on attaining the best result in your divorce.
In many cases, it may be best to attempt to mediate a fair property division with a third-party mediator’s help before going to court. Contact us today for a consultation at (815) 455-3000. Our highly professional, aggressive divorce attorneys will fight hard to protect your rights.
