Understanding Equitable Distribution Laws in Illinois

 Posted on November 16, 2018 in Main

If you and your spouse are considering calling it quits, you probably have a thousand questions. One of these questions may be, “How will we divide our property during the divorce?” When two people marry, they not only combine their lives but also their material possessions and wealth. Sometimes untangling marital assets can be a challenging and time-consuming endeavor. However, being educated about what the property division process entails can help you be better prepared and eliminate some of the stress associated with the divorce process.

Separate Property Versus Marital Property

If divorcing couples can, they may decide how to divide their property on their own without court intervention. However, when couples cannot agree on how to divide assets, the court must step in. Illinois divides property based on a system called “equitable distribution.” First, it is determined what property is marital (shared) and what property is non-marital or separate. Generally, marital property includes any assets or funds acquired during the marriage. Non-marital property includes property which a spouse acquired before getting married, as well as certain gifts and inheritances. The court will only divide marital property or those assets which have been commingled.

It is important to note that separate property can become marital property in certain situations. For example, if a husband receives a cash inheritance, it is considered separate property. However, if he deposits the inheritance into a joint bank account with his spouse or uses it for family expenses, the property may be considered to be transmuted into marital property.

Factors Considered When Distributing Property

In some states, marital property is divided exactly in half during a divorce. Each spouse receives 50 percent of the martial estate regardless of their financial standing. However, Illinois divides property based on what is equitable or fair for each individual. The Illinois Marriage and Dissolution of Marriage Act (IMDMA) outlines the factors which are considered by courts during property division. They include:

• The spouses’ overall financial circumstances;
• Each spouse’s income-earning potential;
• The value of each spouse’s non-marital estate;
• The age, health, and needs of each spouse;
• Each spouse’s contribution to the marital estate;
• Contributions made by a spouse acting as a homemaker;
• Dissipation (wasting of assets during the end of the marriage);
• Commitments or rights from prior marriages;
• Any existing agreement by the parties (like a prenuptial agreement);
• Parental responsibilities and custodial provisions for children;
• Whether either spouse will receive spousal maintenance; and
• Tax consequences.

Considering Divorce? Contact the Wheaton, Illinois Family Law Attorneys at MKFM Law

For help navigating the complex world of equitable distribution laws, call the DuPage County property distribution attorneys at Mirabella, Kincaid, Frederick & Mirabella, LLC at 630-665-7300 today. We will provide the guidance you need in protecting your rights throughout the divorce process.

Sources:

http://www.ilga.gov/legislation/ilcs/documents/075000050k503.htm

https://www.law.cornell.edu/wex/equitable_distribution