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Dividing Property in an Illinois Divorce

 Posted on July 21, 2017 in Division of Assets

DuPage County divorce attorneyIn many divorce cases, determining how property will be divided is among the most challenging aspects. It can be extremely difficult to decide if who will get what, especially if neither spouse brought substantial property to marriage in the first place. If you are considering a divorce, it is important to know what the law says about dividing your marital property.

Step One: What Is Divisible?

The first step in allocating property in a divorce is to determine what assets or debts are considered part of the marital estate. With very limited exceptions for inheritances and gifts to one spouse, almost any property acquired by either spouse during the marriage is considered marital property and is subject to division. Property that each spouse owned prior to the marriage will generally not be divisible and will remain with the spouse who owned it previously. As with any rule, there are exceptions, but for the most part, if you obtained an asset or debt while you were married, it is part of the marital estate.

Step Two: Evaluation and Analysis

Each asset, debt, and piece of marital property must be assigned a value so that it can be properly considered in the property division process. Assets such as vehicles and boats tend to depreciate in value over time, while real estate and investments may be worth more now than at the time they were obtained or started. In many cases, outside professionals such as appraisers, accountants, and financial planners may be employed to determine the value of assets within their area of expertise.

Non-marital property may also need to be valuated so that each spouse’s current financial situation can be properly taken into account. This will be an important element of the next step.

Step Three: Equitable Distribution

Once the marital estate has been identified and evaluated and there is a clear understanding of each spouse’s current resources, the property can then be divided. In some states, each spouse may expect to receive half of the marital estate—or community property, as it is called in those states—but that is not how it works in Illinois. Illinois law is based on the principle of equitable distribution, which means that marital property must be divided fairly following a careful evaluation of each spouse’s relevant circumstances.

The law provides about a dozen factors that the court must consider in determining how to divide marital property in a divorce, including:

  • Each spouse’s income, needs, and ability to earn a living;
  • Each spouse’s contribution to the marital estate;
  • Contributions made by a stay-at-home parent or homemaker;
  • Whether maintenance (alimony) is being ordered;
  • Which spouse is assuming primary responsibility for the couple’s children; and
  • Any prenuptial or postnuptial agreement between the spouses.

Based on the court’s analysis, the property will then be divided between the spouses and the resulting settlement will be entered into the divorce judgment.

We Can Help

A divorce can be difficult on everyone involved, but an experienced DuPage County family law attorney can help simplify the process for you. Call 630-352-2240 for a free consultation at Pesce Law Group, P.C. today. With four convenient office locations, we are ready to provide the guidance you need.


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