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If you are considering divorcing your spouse, you probably have many questions. One of them may be the question of how you and your spouse’s property will be divided after you split. You may be wondering to yourself, “Who will stay in the family home?” or “Who will get the car?” You may have valuable property that you brought into the relationship such as antiques or jewelry. Will you get to keep those items? The law regarding property division in Illinois can be complicated and vary somewhat from case to case but there are some guidelines that courts use when making decisions about property division.
Before property is divided, it must be categorized as either marital or non-marital. Marital property includes assets and debts that the couple acquired during the marriage. Non-marital property is property that was owned by one spouse before the couple was married or property that was acquired during the marriage by gift or inheritance. Illinois is an “equitable division” state. Equitable division means that marital property and debts are not always divided evenly; instead, they are divided fairly. The property and assets that a married couple owns is divided based on several factors including:
When entertainers and comedians talk about divorce, they often make references to the idea that both spouses will automatically get half of the couple’s assets. Such tropes are often mildly misogynistic, suggesting that a rich man who gets married is at risk for his wife taking half of everything in a divorce—including the assets he accumulated before the marriage. In reality, this popular depiction of divorce is essentially dead wrong, especially in Illinois. While some states do provide for an equal division of marital property in a divorce—and marital property does not usually include property that a spouse owned prior to marriage—Illinois is not among them. Instead, Illinois follows the principles of equitable distribution, which means that each spouse will receive a portion of the marital estate, but their portions will not necessarily be equal.
Fair Does Not Always Mean Equal
If a divorcing couple is able to reach an agreement regarding their marital property, an Illinois court will approve it as long as the agreement is not found to be unconscionably one-sided. If the couple cannot reach an agreement on their own, the court is required by law to allocate their marital property justly and fairly. The law makes no reference to the idea that the split should be exactly equal.
When a couple decides to divorce, they must divide their property between them. As one might expect, each spouse brings property into the marriage, but marital property is also acquired throughout their relationship. Some couples are exceedingly careful about segregating their respective personal property, while others pay little attention to the matter until divorce becomes a possibility. If you are in a position where your property has become commingled, or “mixed in”, with your spouse’s, consulting an experienced divorce lawyer may be the best option for you.
What Is Commingling?
Commingling occurs when two people’s personal property becomes intertwined or mixed. The best example of this is an individual depositing individually-owned funds—money he or she made before the marriage or received as an inheritance during the marriage—into a marital checking account. Doing so, in most cases, causes the deposited funds to lose their identity as non-marital property.
When a couple is divorcing, retirement assets are often some of the most critical assets to divide appropriately. Instruments like 401(k) accounts and pensions must be divided between the spouses, because most spouses will not have planned for retirement without at least some of those funds being present. However, unlike many other assets, it is not generally possible to simply split the proceeds of a retirement account down the middle. There is a specific procedure that must be followed under Illinois law to ensure that the asset is divided equitably.
Determining a Pension’s Value
Two factors go into determining the value of a pension for purposes of marital property division. The first is whether or not the pension is, in fact, marital property. Generally, the value of the pension that accrued during the marriage is considered marital property, and the value that was there beforehand is not. Some judges may hold that these funds have commingled, but such a determination is dependent upon the facts of your particular case.
Dividing marital property is never an easy task, but doing so when dealing with extremely valuable assets can be even more complex. If you and your soon-to-be-ex spouse have many high-value assets, a qualified professional may be useful in evaluating them and reaching an appropriate settlement.
Illinois is an equitable distribution state, which means that all marital property must be divided between the spouses in the way deemed most fair based on a number of factors including each spouse’s situation and future earning potential. With most marital assets, the questions of who paid for or performed upkeep on specific assets are somewhat irrelevant; what matters more is who has the potential to earn more and to place themselves in a better situation going forward. A spouse with a high-paying job and relatively few financial obligations will probably end up with fewer marital assets than a spouse who makes very little money or is saddled with many debts.