Equal Property in Illinois Divorce Law

by Heather Frances Google
Courts divide property as part of the divorce process.

Courts divide property as part of the divorce process.

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When spouses divorce in Illinois, they can agree about how they want their property divided or they can have the court divide their property according to Illinois statutes. An Illinois court can accept the property division you propose and adopt it as part of your divorce decree, but the court will make its own determinations if you cannot reach agreement.

Marital vs. Nonmarital

Generally, a court can only divide a couple’s marital property, which includes all property acquired during the marriage except for property acquired in ways that make it nonmarital property. Items excluded from marital property include property acquired by gift or inheritance and property addressed in a prenuptial agreement. Property either spouse acquires before their marriage is also nonmarital property.

Equitable Distribution

Illinois is an “equitable distribution” state when it comes to property division during a divorce. This means the court will distribute your marital property in a way that is fair and equitable, but there will not necessarily be a 50/50 split. As long as the court follows the correct division procedures, it can award property unequally, such as a 60/40 split. Also, the court may award a greater share of property to one spouse as well as a greater share of debt to balance out the additional value in property the spouse is receiving.

Factors

Illinois courts consider many factors when awarding marital assets to divorcing spouses, including the length of the marriage, each spouse’s contribution to the couple’s assets, the value of each spouse’s nonmarital property and the standard of living the spouses established during the marriage. Illinois law also allows the court to consider any other factors the court finds to be relevant, even beyond what is listed in state law.

Marital Home

Marital assets may include many types of assets, such as retirement funds like 401(k) plans, the marital home and personal property like clothing and furniture. The spouses can agree to let one spouse keep living in the couple’s home or the spouse who wishes to live in the home can ask the court to allow this. Keeping one spouse in the home may be particularly beneficial when the couple’s minor children are used to living in that home. An Illinois court may also order the spouses to sell the house and split the proceeds.