Illinois Property Division | IL Settling Disputes for Marital and Non-Marital Divorce Assets and Debts

In a divorce, all property from the marriage must be sorted out by the courts. Among the many factors a court must look at, a universal one is property division, specifically Illinois property division.

No divorcing couple should ignore the guidance of a licensed Family Law attorney. Property division laws can be confusing, vary from state to state and lawyers have the proper training and experience to tell the judge what a divorcing spouse wants or needs from the property division.

Property Division Divorce Laws in Illinois

The purpose of Illinois property division laws is to make sure that marital property is allocated to each spouse based on a number of factors determined under Illinois state law. Illinois marital property is divided under the considerations of §750 ILCS 5/503(d) but the trial court judge receives broad discretion when converting Illinois marital property into separate Illinois divorce property.

Illinois is an equitable distribution state. This means that with regard to Illinois divorce assets, anything the spouses had before a marriage usually will not be included in Illinois divorce assets or Illinois divorce property. The only property that comes into the court's distribution is that which is legally classified as property of the marriage subject to §750 ILCS 5/503(a).

What is considered Marital and Non-Marital Property?

Marital property is defined under §750 ILCS 5/503(a) as all property acquired by either spouse subsequent to the marriage. There is a presumption that all property acquired during the marriage by either spouse is marital property regardless of how title is held.

Non-marital property is all property listed as exempt under §750 ILCS 5/503(a). Some of these are:

Property acquired by gift, legacy or descent
Property acquired by a spouse after a judgment of legal separation
Property excluded by valid agreement of the parties
Property acquired before the marriage
The increase in value of property acquired by a method listed in paragraphs (1) through (6) of the statute, irrespective of whether the increase results from a contribution of marital property, non-marital property, or a spouse's personal efforts
Income from property acquired through a listed exemption if the income is not attributable to the personal effort of a spouse

Dividing Assets and Debt

After the court decides which property is available for distribution, the next step is property valuation. The final step is the allocation of marital property.

Under Illinois Statute §750 ILCS 5/503(d), the court considers a number of factors in dividing assets and debt. Some of these are:

The marriage's length
The parties' age & health
The parties' earning capacity
The parties' economic circumstances when the property division is effective
The value of the property assigned to each spouse

Using statutory factors, judges decide how a marriage's assets should be divided. Here is a list of the most common property items and the most common allocation scheme used.

Cash: Divided equitably among the spouses.
- Example 1: A joint savings account has $5,000. The court would most likely award part of the money to each spouse based on the spouses' individual circumstances.
- Example 2: A joint savings account has $5,000. One spouse contributed $4,000 and the other contributed $1,000. The amount may be divided 50-50 or may be more balanced if the $1,000 contributor has fewer assets than the $4,000 contributor.
Retirement Plans: Divided based on the duration of the marriage at the time the benefits accrued, looking at the present value of the plan and/or survivor benefits.
- Example 1: A spouse got benefits in a retirement plan after working for 25 years and was married for 20 of those years. The ex-spouse would be entitled to a portion of the retirement plan that was acquired during the marriage.
- Example 2: A spouse has an unvested retirement plan. No division takes place until the plan is payable to the spouse who has it.
Vehicles: Divided based on the values at the date of trial or some other date as close to the trial as possible. May be sold or given to a spouse outright.
- Example 1: A boat owned by one spouse is not operational. The boat may be sold with the proceeds to be given to a poorer spouse or divided among the spouses in some way.
- Example 2: A car has a shared title. The car may be sold with the proceeds going to each spouse equally or the car may be given to a poorer spouse.
Insurance: Determined based upon each spouse's health, availability of alternate insurance and premium payments from marital income.
- Example 1: One spouse has covered the other under health insurance. The other spouse is in poor health and could not afford alternate health care coverage. The court may order the first spouse to continue covering that spouse for a set time period and/or award a cash payment to the other spouse so that spouse can get alternate insurance.
- Example 2: One spouse has a life insurance policy where the ex-spouse is to get survivor benefits. The court may order this arrangement to continue or award the spouse money in an amount equivalent to the value of the benefits contributed through marital income.

Settling Disputes in a Divorce Case with Property and Asset Division

If a spouse is being uncooperative or there are problems with the property division, you may go back to court to get the order enforced or modified at the court's discretion.

However, the trial court's determinations will not be changed unless there was a clear abuse of discretion.

Help From an Illinois Property Divorce Lawyer

Retaining an Illinois property divorce lawyer is key to getting the fairest and most equitable result in the property division phase of a divorce. The lawyer can provide professional guidance, keep you informed of likely outcomes and help you present the best arguments and presentation to the trial judge handling the divorce.

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