Compared to the rest of the country, Illinois has fewer divorces on average, with a rate of 6.6 compared with the national average of 7.7, per 2018 U.S. Census data. Even so, divorce in Illinois does occur, and if you’re going through one or are considering filing for divorce, there are a number of factors you’ll need to review. One of the central questions I hear repeatedly in my over four decades of legal practice is, “Who gets what in a divorce?”
The topics of asset division and division of property are essential to understand when pursuing a divorce because the answers will depend on state law as well as the specifics of your marriage.
For help with this or any aspect of family law, call me at Goldstein Law Office for a consultation. I’m able to represent clients throughout Lake County and Cook County, Illinois, as well as Antioch, Deerfield, Highland Park, Lake Forest, North Chicago, and Waukegan.
Divorcing?
Community Property vs. Separate Property in Illinois
The first major concept to understand regarding the division of assets is the difference between community property and separate property.
Community Property
Illinois follows an equitable distribution model for divorce which means that all marital property (also called community property) must be split fairly, but not necessarily equally between the two spouses.
In general, marital property is considered to be any assets that were acquired after the marriage took place. These could be assets acquired jointly or separately by each spouse. This includes assets like pension benefits and stock options, regardless of which spouse is named on the account or has been contributing to the pension. This could also include equity in a home that was originally purchased by one partner before the marriage, but afterward, both spouses contributed to the maintenance and monthly mortgage payments. There are exceptions to this rule and these would be considered separate property, but many of these distinctions will be considered on a case-by-case basis.
Separate Property
Separate property (non-marital property) is usually considered any assets that were acquired by each partner before the marriage took place, but it can also include assets acquired after the marriage. Examples of this would be gifts or inheritances that one spouse received, property that was excluded in a prenuptial agreement, profits made from selling or exchanging property that was acquired before the marriage, property that was acquired due to a legal judgment, or income generated from premarital property.
Who Determines How Assets Are Divided?
If a couple is pursuing an uncontested divorce (meaning both spouses agree on the major issues), they can determine together who will get what property and write this up in a marital dissolution agreement. In most cases, a judge will review this, and if they find it’s more or less fair to both parties, they will approve it.
However, if the divorce is contested, then a judge will have to determine the equitable distribution of assets. If this is the situation you find yourself in, it’s highly recommended you work with a family law attorney to best represent your interests and ensure you get your fair share of assets.
Factors Considered in Asset Division in Illinois
When a judge reviews your case, they’ll look at a number of factors to determine what’s “equitable.” For example, they’ll review how much each spouse contributed to the joint assets during the marriage, whether one spouse didn’t earn as much as the other in traditional income (such as being a stay-at-home parent), any pre- or post-nuptial agreements, whether there are any minor children from the marriage and what their needs are, how well-positioned each spouse is to provide for themselves after the divorce is final (including whether a non-working spouse will have to go back to school or obtain further job training before they’ll have a sufficient income), and the relative age and health status of each spouse.
Get Reliable Legal Advice
Even in the best cases, most separating couples may wish to consult with an attorney before finalizing their divorce. If your divorce is contested, you may need to work closely with a lawyer who will act as your liaison with your spouse as you make decisions about how to move forward. However, if the divorce is mostly amicable, you may only want to consult with an attorney briefly to ensure you’re not leaving anything out and that your agreement will be approved by a judge.
Asset Division Attorney Serving Lake County & Cook County, Illinois
If you’re in Lake County or Cook County, Illinois, and would like to speak with an experienced family law attorney, reach out to me at Goldstein Law Office for a consultation. No matter how much or how little help you’d like, I’ll meet you where you’re at and always give you honest and practical legal advice so you can make informed decisions regarding your future and your family