While there are many difficult parts of going through a divorce, one of the most challenging aspects involves the distribution of property.
Before a court can formally end a marriage, it must determine how to divide the couple’s assets. States use several methods when distributing assets during a divorce. When contemplating the effects of a divorce on your life, you may wonder:
Is Illinois a Community Property State?
No, Illinois is not a community property state. Instead, it’s an equitable property state, which means that property is divided based on what the court considers fair and just, taking into account factors like each spouse’s income, earning potential, and contributions to the marriage.
Understanding the distinction between community property and equitable property states is crucial when going through a divorce in Illinois.
At Vantage Group Legal Services, we work with a committed team of divorce and family law attorneys to ensure our client’s interests are best served.
What Are Community Property Laws?
In community property states, all assets either spouse acquires during the marriage are assumed to belong equally to both spouses. This is regardless of whose name is on the title, how the couple purchased the assets, or which spouse earned the money used to purchase the assets.
However, there are a few exceptions to this general rule. The following assets do not count as community property:
- Gifts from one spouse to another;
- Proceeds from a personal injury lawsuit;
- Assets inherited in one spouse’s name; and
- Assets obtained before the marriage.
Other than these types of assets, everything else a couple acquires during the marriage is community property and is divided equally between the spouses.
How Are Assets Divided in a Non-Community Property State Like Illinois?
Illinois is an equitable division state, which is quite different from a community property state. Thus, when a court overseeing a divorce divides a couple’s assets, they will not necessarily split everything down the middle. Instead, Illinois courts divide all marital assets between the spouses using the equitable distribution framework. Equitable division means courts divide assets based on what is equitable or fair, not necessarily what is equal.
The first step in the property-division process involves identifying all marital property. Marital property includes all assets acquired by either spouse during the marriage. In this way, the first step is similar to how the process works in community property states. Generally, the definitions of marital property and community property are similar. The difference is what courts do once they identify the marital property.
In Illinois, once the court determines the couple’s marital property, the court then considers several factors before dividing up a couple’s assets.
- Each spouse’s contributions in acquiring the assets;
- Whether either spouse unnecessarily dissipated marital assets leading up to the divorce;
- The value of each spouse’s non-marital property;
- The length of the marriage;
- The financial situation of each spouse;
- Any obligations either spouse has from prior marriages;
- The effect of any pre-nuptial or post-nuptial agreement;
- Each spouse’s age and health;
- The education, vocational skills, and employment prospects of each spouse;
- Who will be caring for the couple’s children, if any;
- The tax consequences of any property distribution decisions; and
- Each spouse’s future opportunity to acquire capital.
Courts may consider other relevant factors as well. However, under Illinois divorce law, courts are specifically prohibited from considering either spouse’s fault in the deterioration of the marriage in an equitable distribution analysis.
FAQ: Distribution of Property in an Illinois Divorce
Who Gets the House in a Divorce in Illinois?
The court’s decision regarding a couple’s primary residence depends on the equitable distribution factors listed above. However, for many couples, their home is their most valuable asset. Because the equity in a home cannot be divided between the spouses without selling the home, this limits the court’s options.
If either spouse has enough assets to “buy out” the other spouse’s interest, that may be a good option. For example, if one spouse receives the home, the other spouse may receive other assets, such as retirement account balances, vehicles, or other personal property.
Another option is to sell the home. This is a common solution if a couple doesn’t have significant assets other than their home.
Is Everything Split 50-50 in a Divorce in Illinois?
Not necessarily. While a court has the option to divide up a couple’s assets equally, that is the exception. Instead, courts rely on the equitable distribution factors discussed above. While one of the factors a court considers is each parties’ contribution to the acquisition of assets, state law specifically provides that courts must consider “the contribution of a spouse as a homemaker or to the family unit.”
In this way, stay-at-home parents are not necessarily in an unfavorable position, as they can benefit from their non-financial contributions to the couple’s overall wealth.
Does Either Spouse’s Fault Affect the Distribution of Property?
Generally, courts cannot consider either spouse’s fault when making property-distribution decisions. So if your spouse were unfaithful, it would not affect how the court divides your assets. However, there is an exception to this involving the dissipation of assets. Dissipation refers to money spent after the breakdown of the marriage for things unrelated to the marriage.
To use the above example of unfaithfulness, if your spouse bought their significant other a new car, that would factor into the court’s decision on how to distribute assets. Similarly, the court would consider if your spouse went on an expensive and uncharacteristic shopping spree.
Contact an Illinois Divorce Attorney to Set Up a Free, No-Obligation Consultation Today
If you believe that divorce is on the horizon, it is essential you contact an experienced divorce attorney as soon as possible. At Vantage Legal Group, we developed a unique system to serve our clients. We pair each of our clients up with a highly-skilled lawyer who will guide them through the divorce process, aggressively advocating on their behalf at every step along the way.
Our lawyers are among the best in the industry and have the highest degree of honesty, integrity, energy, and intelligence. Each of our family law attorneys has at least seven years of experience practicing divorce law.
To learn more and to schedule a free consultation with an Illinois divorce lawyer, contact Vantage Group Legal Services. You can reach us by phone at 773-232-4768, or you can connect with us through our online contact form. We look forward to discovering how we may help you!