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Property Division in Illinois Divorces

Posted on in Family Law

McHenry County divorce attorney, property division in Illinois, property division, marital property, non-marital property, retirement accounts and divorce, joint bank account, equitable distributionWho gets the house? Which one of us can keep the car? What will happen to my retirement account?

These sorts of questions are often some of the first on the minds of those contemplating divorce. Property division is one of the most important parts of the divorce process, and it is often surrounded by several myths and rumors. However, much of the property division process is centered around two questions: “What gets divided?” and, “How does it get divided?”

What Gets Divided?

The question of what gets divided in a divorce has a fairly clear answer. The judge will divide “marital property,” while leaving “non-marital property” with the spouse who owns it. Marital property is almost any property that either spouse acquires during the marriage. If the spouses buy a house during a marriage, it is marital property. Wages earned by either spouse also get divided. Additionally, retirement accounts that are only in one spouse's name qualify as marital property—if they were earned during the marriage.

However, not all property is marital property. The most obvious example of non-marital property is something that one spouse brings into a marriage—but even some property acquired during a marriage is still non-marital. For instance, gifts to one spouse or inheritances are considered non-marital property, and so is equity earned on property that one spouse brings into a marriage. Importantly, it is possible for a spouse to turn non-marital property into marital property without realizing it. The law in that area depends greatly on the type of property. One example would be a spouse who commingles his or her inheritance with other money in a joint bank account.

How it Gets Divided

Once marital property is accounted for, the process of dividing it begins. The Illinois law on property division centers around the idea of equitable distribution. This means that judges do not have to divide up property equally. Rather, they have to divide it up fairly. This gives judges a lot of leeway in making property division decisions, but the law provides numerous factors for judges to examine when determining fairness. These include:

  • The property's value;

  • The marriage's length;

  • Each spouse's economic situation;

  • Each spouse's future employability;

  • The needs of any children in the marriage; and

  • The tax consequences of being assigned a piece of property.

However, these are just some of the many factors that guide a judge's decisions during property division.

Divorce and property division in Illinois can be a complicated legal process, but spouses need not face it alone. Contact a McHenry County divorce attorney today to learn more about the legal landscape of divorce.

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