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McHenry County Lawyers for Asset, Debt and Real Estate Division

Every divorce is unique, yet they all have one factor in common: division of assets. The assets that a couple obtains or develops over the course of their marriage are considered marital property, except for assets specifically designated as separate property and those acquired as gifts or through inheritance.

Marital property must be divided equitably in an Illinois divorce. For some couples, this process is simple. For others, it can be far more contentious. Even for couples who can agree on their property division, it can be a long process if they have many assets to divide. Broach the conversation about dividing your property with your divorce lawyer soon after you begin working with him or her. In doing so, you will be equipped to pursue your property goals in the divorce and understand how these determinations are made.

Equitable Division

In Illinois, a divorcing couple's property is divided pursuant to the doctrine of equitable distribution. This means that the couple's marital assets are not necessarily divided 50/50, instead, they are divided in an equitable fashion, and according to each partner's individual needs following the divorce. These can include an individual's financial needs, his or her personal and medical needs, and needs related to other terms of the couple's divorce settlement, such as their parenting time arrangement. For example, if one parent is deemed to be the children's primary caregiver and obtains a larger share of parenting time, the court might choose to give that parent the marital home so the children are not forced to move due to the divorce.

Each partner's actions over the course of the marriage are generally not considered during the property division process. The only exception to this is if a partner's conduct somehow impacted the couple's marital property, such as an individual spending shared funds on an affair. If this is the case, the dissipation of marital assets is considered when determining each party's share.

Factors Considered in the Property Division Process

To determine each party's needs after the divorce, the court considers a set of 12 factors. Which factors carry the most weight can vary depending on the couple and their circumstances. The 12 factors outlined in the Illinois Marriage and Dissolution of Marriage Act are:

  1. Each party's contribution to the pool of marital assets, which can include efforts as a homemaker while the other party worked outside the home
  2. Each party's dissipation of the marital assets
  3. The length of the marriage
  4. The value of the property assigned to each partner
  5. Both parties' existing financial responsibilities to previous spouses or children from previous relationships
  6. Relevant circumstances regarding the other terms of the couple's divorce settlement, such as their parenting plan
  7. The economic impact of these other circumstances
  8. Whether the couple has a prenuptial or postnuptial agreement in place
  9. Each partner's age, health, and sources of income as they relate to employability
  10. Whether either partner will receive spousal maintenance
  11. Each partner's future earning capability, and
  12. The tax consequences of each asset.

Marital, Separate, and Commingled Property

Property obtained during a marriage is known as marital property, which is subject to division during a divorce. In contrast, separate property is not subject to division. There is another type of property as well - commingled property. This is property that started as separate property, but then changed in value during a couple's marriage because of efforts from both parties. An example of this is a home owned by one partner that increases in value and equity due to mortgage payments, maintenance, and improvements contributed by the original owner's spouse. In many cases involving commingled property, the value of each individual's separate contributions to the commingled property is credited back to their individual property estates.

Work with an Experienced Crystal Lake Divorce Lawyer

If you are considering filing for divorce in the near future or if you have already filed for divorce, you need to work with an experienced divorce lawyer to ensure that your rights and interests are protected at every stage of the process. Our team of passionate Crystal Lake divorce lawyers at Botto Gilbert Lancaster, PC is here to be your advocate and provide you with quality legal representation. Contact our office today to set up your initial legal consultation with us.

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